PAET  IV. 


THE   ETHICS   OF   SOCIAL   LIEE 


JUSTICE. 


Spencer's  Sjilletic  PMlosoplj. 

(1.)  FIRST  PRINCIPLES gS.OO 

I.  The  Unknowable. 
II.  Laws  op  the  Knowable. 

(2.)  THE  PRINCIPLES  OF  BIOLOGY.    Vol.  I gS-OO 

I.  The  Data  of  Biology. 
II.  The  Inductions  of  Biology. 

III.  The  Evolution  op  Life. 

(3.)  THE  PRINCIPLES  OF  BIOLOGY.    Vol.  H $2.00 

IV.  Morphological  Development. 
V.  Physiological  Development. 

VI.  Laws  of  Multiplication. 
(4.)  THE  PRINCIPLES  OF  PSYCHOLOGY.    Vol.  L  .        .        .  S2.00 
I.  The  Data  op  Psychology. 
II.  The  Inductions  op  Psychology. 

III.  General  Synthesis. 

IV.  Special  Synthesis. 
V.  Physical  Synthesis. 

(5.)  THE  PRINCIPLES  OF  PSYCHOLOGY.    Vol.  U.         .       .  $2.00 
VI.  Special  Analysis. 
VII.  General  Analysis. 
VIII.  Corollaries. 

(6.)  PRINCIPLES  OF  SOCIOLOGY.    Vol.  I S2.00 

I.  The  Data  op  Sociology. 
11.  The  Inductions  op  Sociology. 
III.  The  Domestic  Relations. 

(7.)  PRINCIPLES  OF  SOCIOLOGY.    Vol.  II $2.00 

rv.  Ceremonial  Institutions. 
V.  Political  Institutions. 
VI.  Ecclesiastical  Institutions. 
(8.)  PRINCIPLES  OF  SOCIOLOGY.    Vol.  HI.      . 

(9.)  PRINCIPLES  OF  MORALITY.    Vol.  I.  . 

I.  The  Data  of  Ethics $1.25 

II.  The  Inductions  of  Ethics 

III.  The  Ethics  of  Individual  Life 

IV.  The  Ethics  of  Social  Life  :  Justice     .       .       .  $1.25 
(10.)  PRINCIPLES  OF  MORALITY.    Vol.  H. 


D.  APPLETON  &  CO.,  Publishers,  New  York. 


JUSTICE 


BEING  PAKT  IV 


PRINCIPLES  OF  ETHICS, 


HEEBEET  SPEITCEE. 


NEW    YORK: 
D.   APPLETON    AND    COMPANY. 

1892. 


Authorized  Edition. 


PREFACE. 


In  the  Preface  to  TJie  Data  of  Ethics,  publisliecl  in  June, 
1879^  tliere  occurred  tlie  sentence: — "Hints,  repeated  of 
late  years  with  increasing  frequency  and  distinctness,  have 
shown  me  that  health  may  permanently  fail,  even  if  life 
does  not  end,  before  I  reach  the  last  part  of  the  task  I 
have  marked  out  for  myself/'  There  followed  the  state- 
ment that  since  "this  last  part  of  the  task'' — the  afSliation 
of  Ethics  on  the  doctrine  of  Evolution — was  that  "  to  which 
I  regard  all  the  preceding  parts  as  subsidiary,*'  I  did  not 
like  to  contemplate  the  probability  of  failure  in  executing  it. 
Hence  the  decision  to  write  The  Data  of  Ethics  in  advance. 

Something  like  the  catastrophe  foreseen  gradually  came. 
Years  of  declining  health  and  decreasing  power  of  work, 
brought,  in  1886,  a  complete  collapse;  and  further  elabora- 
tion of  The  Synthetic  Philosophy  was  suspended  until 
the  beginning  of  1890,  when  it  became  again  possible 
to  get  through  a  small  amount  of  serious  work  daily.  Of 
course  there  arose  the  question — What  work  to  undertake 
first  ?  Completion  of  The  Principles  of  Ethics  was,  without 
hesitation,  decided  upon :  the  leading  divisions  of  The 
Principles  of  Sociology  having  been  executed.  A  further 
question  presented  itself — What  part  of  The  Principles  of 
Ethics  should  have  precedence  ?  Led  by  the  belief  that  my 
remaining  energies  would  probably  not  carry  me  through 
the  whole^  I  concluded  that  it  would  be  best  to  begin  with 


the  part  of  most  importance.  Hence,  passing  over  Part  II, 
—"The  Inductions  of  Ethics/'  and  Part  III,— "The  Ethics 
of  Individual  Life,'-'  I  devoted  myself  to  Part  lY, — "  The 
Ethics  of  Social  Life  :  Justice,''  and  have  now,  to  my  great 
satisfaction,  succeeded  in  finishing  it. 

Should  improved  health  be  maintained,  I  hope  that, 
before  the  close  of  next  year,  I  may  issue  Parts  II  and  III, 
completing  the  first  volume ;  and  should  I  be  able  to  con- 
tinue, I  shall  then  turn  my  attention  to  Part  Y, — "The 
Ethics  of  Social  Life  :  Negative  Beneficence,"  and  Part  YI, 
— "  The  Ethics  of  Social  Life  :  Positive  Beneficence." 

This  work  covers  a  field  which,  to  a  considerable  extent, 
coincides  with  that  covered  by  Social  Statics,  published  in 
1850 ;  though  the  two  differ,  alike  in  extent,  in  form,  and 
partially  in  their  ideas.  One  difference  is  that  what  there 
was  in  my  first  book  of  supernaturalistic  interpretation  has 
disappeared,  and  the  interpretation  has  become  exclusively 
naturalistic — that  is,  evolutionary.  With  this  difference 
may  be  joined  the  concomitant  difference,  that  whereas  a 
biological  origin  for  ethics  was,  in  Social  Statics,  only 
indicated,  such  origin  has  now  been  definitely  set  forth; 
and  the  elaboration  of  its  consequences  has  become  the 
cardinal  trait.  And  a  further  distinction  is  that  induction 
has  been  more  habitually  brought  in  support  of  deduction. 
It  has  in  every  case  been  shown  that  the  corollaries  from 
the  first  principle  laid  down,  have  severally  been  in  course 
of  verification  during  the  progress  of  mankind. 

It  seems  proper  to  add  that  the  first  five  chapters  have 
already  been  published  in  The  Nineteenth  Century  for 
March  and  April,  1890. 

London,  JM.we,  189I.  EL.  S. 


CONTENTS. 


CHAP.  PAGE 

I. — ANIMAL-ETHICS    ...                  ...                  ...  ...  3 

II. SUB-HUMAN   JUSTICE               ...                  ...  ...  8 

III. — HUMAN   JUSTICE  ...                  ...                  ...  ...  17 

IV. — THE    SENTIMENT    OP   JUSTICE                    ...  ...  25 

V. THE    IDEA   OF   JUSTICE          ...                  ...  ...  35 

VI. THE    FORMULA   OP   JUSTICE                       ...  ...  45 

VII. THE   AUTHORITY   OP    THIS    FORMULA    ...  ...  49 

VIII. — ITS    COROLLARIES                      ...                  ...  ...  62 

IX. — THE    RIGHT    TO    PHYSICAL    INTEGRITY...  ...  64 

X. — THE    RIGHTS    TO    FREE    MOTION   AND    LOCOMOTION  72 

XI. — THE    RIGHTS    TO    THE    USES    OP    NATURAL  MEDIA  80 

XII. THE    RIGHT   OF   PROPERTY    ...                  ...  ...  94 

XIII. — THE    RIGHT    OP   INCORPOREAL   PROPERTY  ...  103 

XIV. — THE    RIGHTS    OP    GIFT   AND    BEQUEST  ...  .,.  118 

XV. TEE     RIGHTS      OF     FREE      EXCHANGE     AND  FREE 

CONTRACT     ...                  ...                  ...  ...  127 

XVI. THE    RIGHT    OF    FREE    INDUSTRY            ...  ...  133 


vm 


CONTENTS. 


PAQB 

XVIT. — THE    RIGHTS    OP    FREE    BELIEF    AND    WORSHIP  ...  136 

XVIII. — THE    RIGHTS    OP   FREE    SPEECH    AND    PUBLICATION  141 

XIX. — A   RETROSPECT    WITH    AN   ADDITION     ...  ...  148 

XX. THE    RIGHTS    OP   WOMEN      ...                  ...  ...  157 

XXI. THE    RIGHTS    OP    CHILDREN                      ...  ...  107 

XXII. POLITICAL    RIGHTS — SO-CALLED              ...  ...  174 

XXIII. — THE   NATURE    OP   THE    STATE                   ...  ...  181 

XXIV. — THE    CONSTITUTION    OF   THE    STATE      ...  ...  188 

XXV. THE   DUTIES   OP   THE    STATE                     ...  ...  201 

XXVI. THE   LIMITS    OP    STATE-DUTIES                ...  ...  215 

XXVII. — THE    LIMITS    OP    STATE-DUTIES-COJ^riiVtr^P  ...  228 

XXVIII. THE    LIMITS    OP    STATK-'DVTIES—CONTINUED  ...  237 

XXIX. THE   LIMITS    OP    STATE-DUTIES-<70ArCi£rZ?£2)  ...  251 

Appendices, 

appendix  a. — the  kantian  idea  of  rights  ...  263 

appendix  b. — the  land-question    ...  ...  266 

appendix  c. — the  moral  motive    ...  ...  271 

appendix  d. conscience  in  animals  ...  277 


JUSTICE. 


'>^-^   OP  THE     *« 

IVBRSIT7] 

CHAPTER  I. 

ANIMAL-ETHICS. 

§  1.  Those  wTio  have  not  read  the  first  division  of  tliia 
work  -will  be  surprised  by  the  above  title.  But  the 
chapters  on  "Conduct  in  General"  and  "^'The  Evolution  of 
Conduct/'  will  have  made  clear  to  those  who  have  read  them 
that  something  which  may  be  regarded  as  animal-ethics  is 
implied. 

It  was  there  shown  that  the  conduct  which  Ethics  treats 
of  is  not  separable  from  conduct  at  large ;  that  the  highest 
conduct  is  that  which  conduces  to  the  greatest  length, 
breadth,  and  completeness  of  life ;  and  that,  by  implication, 
there  is  a  conduct  proper  to  each  species  of  animal,  which  is 
the  relatively  good  conduct — a  conduct  which  stands  to- 
wards that  species  as  the  conduct  we  morally  approve  stands 
towards  the  human  species. 

Most  people  regard  the  subject-matter  of  Ethics  as  being 
conduct  considered  as  calling  forth  approbation  or  reproba- 
tion. But  the  primary  subject-matter  of  Ethics  is  conduct 
considered  objectively  as  producing  good  or  bad  results  to 
self  or  others  or  both. 

Even  those  who  think  of  Ethics  as  concerned  only  with 
conduct  which  deserves  praise  or  blame,  tacitly  recognize 
an  animal-ethics ;  for  certain  acts  of  animals  excite  in  them 
antipathy  or  sympathy.  A  bird  which  feeds  its  mate  while 
she  is  sitting  is  regarded  with  a  sentimcmt  of  approval.    For 


a  ben  wliicli  refuses  to  sit  upon  lier  eggs  there  is  a  feeling 
of  aversion;  Tvliile  one  wliicii  fights  in  defence  of  her 
chickens  is  admired. 

Egoistic  acts^  as  well  as  altruistic  acts^  in  animals  are 
classed  as  good  or  bad.  A  squirrel  which  lays  tip  a  store 
of  food  for  the  winter  is  thought  of  as  doing  that  wbicb  a 
squirrel  onght  to  do ;  and,  contrariwise,  one  whicb  idly 
makes  no  provision  and  dies  of  starvation,  is  thought  ot 
as  properly  paying  the  penalty  of  improvidence.  A  dog 
wbich  surrenders  its  bone  to  another  without  a  struggle. 
and  runs  away,  we  call  a  coward — a  word  of  reprobation. 

Thus,  then,  it  is  clear  that  acts  which  are  conducive  t( 
preservation  of  offspring  or  of  the  individual  we  consider  a 
good  relatively  to  the  species,  and  conversely. 

§  2.  The  two  classes  of  cases  of  altruistic  acts  an' 
egoistic  acts  just  exemplified,  show  us  the  two  cardinf 
and  opposed  principles  of  animal-ethics. 

During  immaturity  benefits  received  must  be  inversel 
proportionate  to  capacities  possessed.  Within  the  famih 
group  most  must  be  given  where  least  is  deserved,  if  dese: 
is  measured  by  worth.  Contrariwise,  after  maturity 
reached  benefit  must  vary  directly  as  worth :  worth  beir 
measured  by  fitness  to  the  conditions  of  existence.  The  : 
fitted  must  suffer  the  evils  of  unfitness,  and  the  well  fitt( 
profit  by  their  fitness. 

These  are  the  two  laws  which  a  species  must  conform 
if  it  is  to  be  preserved.  Limiting  the  proposition  to  t' 
higher  types  (for  in  the  lower  types,  parents  give 
offspring  no  other  aid  than  that  of  laying  up  small  amour 
of  nutriment  with  their  germs  :  the  result  being  that 
enormous  mortality  has  to  be  balanced  by  an  enormo 
fertility) — thus  limiting  the  proposition,  I  say,  it  is  cl 
that  if,  among  the  young,  benefit  were  proportioned 
efficiency,  the  species  would  disappear  forthwith ;  and  tl 
if,  among  adults,  benefit  were  proportioned  to  inefficien 


ANIMAL-ETHICS.  5 

tLo  species  would  disappear  by  decay  in  a  few  generations 
{see  Princijdes  of  Sociology,  §  322). 

§  3.  "What  is  the  ethical  aspect  of  these  principles  ? 
In  the  first  place,  animal  life  of  all  but  the  lowest  kinds 
has  been  maintained  by  virtue  of  them.  Excluding  the 
Protozoa,  among  which  their  operation  is  scarcely  discern- 
ible, we  see  that  without  gratis  benefits  to  offspring,  and 
earned  benefits  to  adults,  life  could  not  have  continued. 

In  the  second  place,  by  virtue  of  them  life  has  gradually 
evolved  into  higher  forms.  By  care  of  offspring,  which 
has  become  greater  with  advancing  organization,  and  by 
survival  of  the  fittest  in  the  competition  among  adults,  which 
has  become  more  habitual  with  advancing  organization, 
superiority  has  been  perpetually  fostered  and  further 
advances  caused. 

On  the  other  hand,  it  is  true  that  to  this  self-sacrificing 
care  for  the  young  and  this  struggle  for  existence  among 
adults,  has  been  due  the  carnage  and  the  death  by  starva- 
tion which  have  characterized  the  evolution  of  life  from  the 
beginning.  It  is  also  true  that  the  processes  consequent  on 
conformity  to  these  principles  are  responsible  for  the 
production  of  torturing  parasites,  which  out-number  in  their 
kinds  all  other  creatures. 

To  those  who  take  a  pessimist  view  of  animal-life  in 
general,  contemplation  of  these  principles  can  of  course 
yield  only  dissatisfaction.  But  to  those  who  take  an 
optimist  view,  or  a  meliorist  view,  of  life  in  general,  and 
who  accept  the  postulate  of  hedonism,  contemplation  of 
these  principles  must  yield  greater  or  less  satisfaction,  and 
fulfilment  of  them  must  be  ethically  approved. 

Otherwise  considered,  these  principles  are,  according 
to  the  current  belief,  expressions  of  the  Divine  will,  or 
else,  according  to  the  agnostic  belief,  indicate  the  mode 
in  which  works  the   Unknowable  Power   throughout  the 


Universe ;  and  in  either  case  tliey  have  the  warrant  hence 
derived. 

§  4.  But  here^  leaving  aside  the  ultimate  controversy 
of  pessimism  versus  optimism,  it  will  suflSce  for  present 
purposes  to  set  out  -with  a  hypothetical  postulate,  and  to 
limit  it  to  a  single  species.  If  the  preservation  and  pros- 
perity o£  such  species  is  to  be  desired,  there  inevitably 
emerge  one  most  general  conclusion  and  from  it  three  less 
general  conclusions. 

,  The  most  general  conclusion  is  that,  in  order  of  obligation, 
the  preservation  of  the  species  takes  precedence  of  the 
preservation  of  the  individual.  It  is  true  that  the  species 
has  no  existence  save  as  an  aggregate  of  individuals; 
and  it  is  true  that,  therefore,  the  welfare  of  the  species 
is  an  end  to  be  subserved  only  as  subserving  the 
welfares  of  individuals.  But  since  disappearance  of  the 
species,  implying  disappearance  of  all  individuals,  in- 
volves absolute  failure  in  achieving  the  end,  whereas 
disappearance  of  individuals,  though  carried  to  a  great 
extent,  may  leave  outstanding  such  number  as  can,  by 
the  continuance  of  the  species,  make  subsequent  fulfil- 
ment of  the  end  possible  ;  the  preservation  of  the  indi- 
vidual must,  in  a  variable  degree  according  to  circum- 
stances, be  subordinated  to  the  preservation  of  the 
species,  where  the  two  conflict.  The  resulting  corollaries 
are  these  : — 

First,  that  among  adults  there  must  be  conformity  to  the 
law  that  benefits  received  shall  be  directly  proportionate  to 
merits  possessed  :  merits  being  measured  by  power  of  self- 
sustentation.  For,  otherwise,  the  species  must  suffer  in  two 
ways.  It  must  suffer  immediately  by  sacrifice  of  superior 
to  inferior,  which  entails  a  general  diminution  of  welfare  ; 
and  it  must  suffer  remotely  by  further  increase  of  the 
inferior   which,   by  implication,    hinders    increase    of   the 


ANIMAL-ETHICS.  7 

superior,  and  causes  a  general  deterioration,  ending  in 
extinction  if  it  is  continued. 

Second,  that  during  early  life,  before  self-sustentation  has 
become  possible,  and  also  while  it  can  be  but  partial,  the 
aid  given  must  be  the  greatest  where  the  worth  shown  is 
the  smallest — benefits  received  must  be  inversely  pro- 
portionate to  merits  possessed :  merits  being  measured  by 
power  of  self-sustentation.  Unless  there  are  gratis  benefits 
to  offspring,  unqualified  at  first  and  afterwards  qualified  by 
decrease  as  maturity  is  approached,  the  species  must  dis- 
appear by  extinction  of  its  young.  There  is,  of  course, 
necessitated  a  proportionate  self-subordination  of  adults. 

Third,  to  this  self-subordination  entailed  by  parenthood 
has,  in  certain  cases,  to  be  added  a  further  self- subordination. 
If  the  constitution  of  the  species  and  its  conditions  of  ex- 
istence are  such  that  sacrifices,  partial  or  complete,  of 
some  of  its  individuals,  so  subserve  the  welfare  of  the 
species  that  its  numbers  are  better  maintained  than  they 
would  otherwise  be,  then  there  results  a  justification  for 
such  sacrifices. 

Such  are  the  laws  by  conformity  to  which  a  species  is 
maintained  ;  and  if  we  assume  that  the  preservation  of  a 
particular  species  is  a  desideratum,  there  arises  in  it  an 
obligation  to  conform  to  these  laws,  which  we  may  call, 
according  to  the  case  in  question,  quasi-ethical  or  ethical. 


CHAPTER  II. 

SUB-HUMAN    JUSTICE. 

§  5.  Of  tlie  two  essential  but  opposed  principles  of 
action  by  pursuance  of  wbicli  eacb  species  is  preserved,  we 
are  here  concerned  only  -with  the  second.  Passing  over 
the  law  of  tbe  family  as  composed  of  adults  and  young,  we 
liave  now  to  consider  exclusively  tlie  law  of  the  species  as 
composed  of  adults  only. 

This  law  we  have  seen  to  be  that  individuals  of  most 
worth,  as  measured  by  their  fitness  to  the  conditions  of 
existence,  shall  have  the  greatest  benefits,  and  that  inferior 
individuals  shall  receive  smaller  benefits,  or  suffer  greater 
evils,  or  both — a  law  which,  under  its  biological  aspect,  has 
for  its  implication  the  survival  of  the  fittest.  Interpreted 
in  ethical  terms,  it  is  that  each  individual  ought  to  be  subject 
to  the  effects  of  its  own  nature  and  resulting  conduct. 
Throughout  sub-human  life  this  law  holds  without  qualifica- 
tion ;  for  there  exists  no  agency  by  which,  among  adults, 
the  relations  between  conduct  and  consequence  can  be 
interfered  with. 

Fully  to  appreciate  the  import  of  this  Ji^w,  we  may  with 
advantage  pause  a  moment  to  contemplate  an  analogous 
law ;  or,  rather,  the  same  law  as  exhibited  in  another 
sphere.  Besides  being  displayed  in  the  relations  among 
members  of  a  species,  as  respectively  well  sustained  or  ill 
sustained  according  to  their  well-adapted  activities  or  ill- 


SUB-HUMAN   JUSTICE.  9 

idapted  activities,  it  is  displayed  in  the  relations  of  the 
)arts  of  each  organism  to  one  another. 

Every  muscle,  every  viscus,  every  gland,  receives  blood 
Q  proportion  to  function.  If  it  does  little  it  is  ill-fed  and 
[wiudles  j  if  it  does  much  it  is  well-fed  and  grows. 
3y  this  balancing  of  expenditure  and  nutrition,  there 
3,  at  the  same  time,  a  balancing  of  the  relative  powers 
f  the  parts  of  the  organism;  so  that  the  organism  as  a 
i^hole  is  fitted  to  its  existence  by  having  its  parts  con- 
inuously  proportioned  to  the  requirements.  And  clearly 
his  principle  of  self-adjustment  within  each  individual,  is 
larallel  to  that  principle  of  self-adjustment  by  which  the 
pecies  as  a  whole  keeps  itself  fitted  to  its  environment, 
i'or  by  the  better  nutrition  and  greater  power  of  propaga- 
ion  which  come  to  members  of  the  species  that  have 
acuities  and  consequent  activities  best  adapted  to  the  needs, 
oined  with  the  lower  sustentation  of  self  and  offspring  which 
ccompany  less  adapted  faculties  and  activities,  there  is 
aused  such  special  growth  of  the  species  as  most  conduces 
0  its  survival  in  face  of  surrounding  conditions. 

This,  then,  is  the  law  of  sub-human  justice,  that  each 
adividual  shall  receive  the  benefits  and  the  evils  of  its  own 
lature  and  its  consequent  conduct. 

§  6.  But   sub-human  justice  is  extremely  imperfect, 
,Hke  in  general  and  in  detail. 

In  general,  it  is  imperfect  in  the  sense  that  there  exist 
iiultitudinous  species  the  sustentation  of  which  depends  on 
he  wholesale  destruction  of  other  species ;  and  this  whole- 
ale  destruction  implies  that  the  species  serving  as  prey 
ave  the  relations  between  conduct  and  consequence  so 
labittially  broken  that  in  very  few  individuals  are  they  long 
aaintained.  It  is  true  that  in  such  cases  the  premature 
Dss  of  life  suffered  from  enemies  by  nearly  all  members 
f  the  species,  must  be  considered  as  resulting  from  their 
latures — their  inability  to  contend  with  the  destructive 
gencies  they  are  exposed  to.     But  we  may  fitly  recognize 


10  JUSTICE. 

the  truth  that  this  violent  ending  of  the  immense  majority 
of  its  lives,  implies  that  the  species  is  one  in  which  justice, 
as  above  conceived,  is  displayed  in  but  small  measure. 

Sub-human  justice  is  extremely  imperfect  in  detail,  in 
the  sense  that  the  relation  between  conduct  and  conse- 
quence is  in  such  an  immense  proportion  of  cases  broken 
by  accidents — accidents  of  kinds  which  fall  indiscriminately 
upon  inferior  and  superior  individuals.  There  are  the 
multitudinous  deaths  caused  by  inclemencies  of  weather, 
which,  in  the  great  majority  of  cases,  the  best  members  of 
the  species  are  liable  to  like  the  worst.  There  are  other 
multitudinous  deaths  caused  by  scarcity  of  food,  which,  if 
not  wholly,  still  in  large  measure,  carries  off  good  and  bad 
alike.  Among  low  types,  too,  enemies  are  causes  of  death 
which  so  operate  that  superior  as  well  as  inferior  are 
sacrificed.  And  the  like  holds  with  invasions  by  parasites, 
often  widely  fatal.  These  frequently  destroy  the  best 
individuals  as  readily  as  the  worst. 

The  high  rate  of  multiplication  among  low  animals, 
required  to  balance  the  immense  mortality,  at  once  shows  us 
that  among  them  long  survival  is  not  insured  by  superiority ; 
and  that  thus  the  sub-human  justice,  consisting  in  con- 
tinued receipt  of  the  results  of  conduct,  holds  individually 
in  but  few  cases.  3. 

§  7.  And  here  we  come  upon  a  truth  of  great  signifi- 
cance— the  truth  that  sub-human  justice  becomes  more 
decided  as  organization  becomes  higher. 

Whether  this  or  that  fly  is  taken  by  a  swallow,  whether 
among  a  brood  of  caterpillars  an  ichneumon  settles  on  this 
or  that,  whether  out  of  a  shoal  of  herrings  this  or  that  is 
swallowed  by  a  cetacean,  is  an  event  quite  independent  of 
individual  peculiarity :  good  and  bad  samples  fare  alike. 
With  high  types  of  creatures  it  is  otherwise.  Keen  senses, 
sagacity,  agility,  give  a  particular  carnivore  special  power 
to  secure  prey.  In  a  herd  of  herbivorous  creatures,  the 
one  with  quickest  hearing,  clearest  vision,  most  sensitive 


SUB-HUMAN   JUSTICE.  H 

nostril,  or  greatest  speed,  is  the  one  most  likely  to  save 
itself. 

Evidently,  in  proportion  as  the  endowments,  mental 
and  bodily,  of  a  species  are  higli,  and  as,  consequently,  its 
ability  to  deal  with,  the  incidents  of  the  environment  is 
great,  the  continued  life  of  each  individual  is  less  depen- 
dent on  accidents  against  which  it  cannot  guard.  And, 
evidently,  in  proportion  as  this  result  of  general  superiority 
becomes  marked,  the  results  of  special  superiorities  are 
felt.  Individual  differences  of  faculty  play  larger  parts  in 
determining  individual  fates.  Now  deficiency  of  a  power 
shortens  life,  and  now  a  large  endowment  prolongs  it. 
That  is  to  say,  individuals  experience  more  fully  the  results 
of  their  own  natures — the  justice  is  more  decided. 

§  8.  As  displayed  among  creatures  which  lead  solitary 
lives,  the  nature  of  sub-human  justice  is  thus  sufiiciently 
expressed  ;  but  on  passing  to  gregarious  creatures  we  dis- 
cover in  it  an  element  not  yet  specified. 

Simple  association,  as  of  deer,  profits  the  individual  and 
the  species  only  by  that  more  eflScient  safeguarding  which 
results  from  the  superiority  of  a  multitude  of  eyes,  ears, 
and  noses  over  the  eyes,  ears,  and  nose  of  a  single  indi- 
vidual. Through  the  alarms  more  quickly  given,  all 
benefit  by  the  senses  of  the  most  acute.  Where  this, 
which  we  may  call  passive  co-operation,  rises  into  active 
co-operation,  as  among  rooks  where  one  of  the  flock  keeps 
watch  while  the  rest  feed,  or  as  among  the  cimarrons,  a 
much-hunted  variety  of  mountain  sheep  in  Central  America, 
which  similarly  place  sentries,  or  as  among  beavers  where  a 
number  work  together  in  making  dams,  or  as  among  wolves 
where,  by  a  plan  of  attack  in  which  the  individuals  play 
different  parts,  prey  is  caught  which  would  otherwise  not 
be  caught ;  there  are  still  greater  advantages  to  the  indi- 
viduals and  to  the  species.  And,  speaking  generally,  we 
may  say  that  gregariousness,  and  co-operation  more  or  less 


12  JUSTICE. 

active,  establish  fhemselves  in  a  species  only  because  tliey 
are  profitable  to  it ;  since,  otbermse,  survival  of  the  fittest 
must  prevent  establishment  of  them. 

But  no"W  mark  that  this  profitable  association  is  made 
possible  only  by  observance  of  certain  conditions.  The 
acts  directed  to  self-sustentation  which  each  performs,  are 
performed  more  or  less  in  presence  of  others  performing 
like  acts;  and  there  tends  to  result  more  or  less  inter- 
ference. If  the  interference  is  great,  it  may  render  the 
association  unprofitable.  For  the  association  to  be  profitable 
the  acts  must  be  restrained  to  such  extent  as  to  leave  a 
balance  of  advantage.  Survival  of  the  fittest  will  else  exter- 
minate that  variety  of  the  species  in  which  association  begins. 

Here,  then,  we  find  a  further  factor  in  sub-human  justice. 
Each  individual,  receiving  the  benefits  and  the  injuries  due 
to  its  own  nature  and  consequent  conduct,  has  to  carry  on 
that  conduct  subject  to  the  restriction  that  it  shall  not  in 
any  large  measure  impede  the  conduct  by  which  each 
other  individual  achieves  benefits  or  brings  on  itself 
injuries.  The  average  conduct  must  not  be  so  aggressive 
as  to  cause  evils  which  out-balance  the  good  obtained  by 
co-operation.  Thus,  to  the  positive  element  in  sub-human 
justice  has  to  be  added,  among  gregarious  creatures,  a 
negative  element. 

§  9.  The  necessity  for  observance  of  the  condition 
that  each  member  of  the  group,  while  carrying  on  self- 
sustentation  and  sustentation  of  offspring,  shall  not 
seriously  impede  the  like  pursuits  of  others,  makes  itself 
so  felt,  where  association  is  established,  as  to  mould  the 
species  to  it.  The  mischiefs  from  time  to  time  experienced 
when  the  limits  are  transgressed,  continually  discipline  all 
in  such  ways  as  to  produce  regard  for  the  limits ;  so  that 
such  regard  becomes,  in  course  of  time,  a  natural  trait  of 
the  species.  For,  manifestly,  regardlessness  of  the  limits,  if 
great  and  general,  causes  dissolution  of  the  group.     Those 


BUB-HUMAN   JUSTICE.  13 

varieties  only  can  survive  as  gregarious  varieties  in  whicli 
there  is  an  inherited  tendency  to  maintain  the  limits. 

Yet  further,  there  arises  such  general  consciousness  of 
the  need  for  maintaining  the  limits^  that  punishments  are 
inflicted  on  transgressors — not  only  by  aggrieved  members 
of  the  group,  but  by  the  group  as  a  whole.  A  "  rogue  " 
elephant  (always  distinguished  as  unusually  malicious)  is 
one  which  has  been  expelled  from  the  herd :  doubtless 
because  of  conduct  obnoxious  to  the  rest — probably  aggi'es- 
sive.  It  is  said  that  from  a  colony  of  beavers  an  idler  is 
banished,  and  thus  prevented  fi'om  profiting  by  labours  in 
which  he  does  not  join:  a  statement  made  credible  by  the  fact 
that  drones,  when  no  longer  needed,  are  killed  by  worker- 
bees.  The  testimonies  of  observers  in  different  countries 
show  that  a  flock  of  crows,  after  prolonged  noise  of  con- 
sultation, will  summarily  execute  an  offending  member. 
And  an  eye-witness  affirms  that  among  rooks,  a  pair  which 
steals  the  sticks  from  neighbouring  nests  has  its  own  nest 
pulled  to  pieces  by  the  rest. 

Here,  then,  we  see  that  the  a  priori  condition  to  har- 
monious co-operation  comes  to  be  tacitly  recognized  as 
something  like  a  law;  and  there  is  a  penalty  consequent 
on  breach  of  it. 

§  10.  That  the  individual  shall  experience  all  the  con- 
sequences, good  and  evil,  of  its  own  nature  and  consequent 
conduct,  which  is  that  primary  principle  of  sub-human 
justice  whence  results  survival  of  the  fittest,  is,  in  creatures 
that  lead  solitary  lives,  a  principle  comiDlicatcd  only  by  the 
responsibilities  of  parenthood.  Among  them  the  purely 
egoistic  actions  of  self-sustentation  have,  during  the  repro- 
ductive period,  to  be  qualified  by  that  self-subordination 
which  the  rearing  of  offspring  necessitates,  but  by  no  other 
self-subordination.  Among  gregarious  creatures  of  con- 
siderable intelligence,  however,  disciplined,  as  we  have  just 
seen,  into  due  regard  for  the  limits  imposed  by  other's 


14  JUSTICE. 

presence^  the  welfare  of  tlie  species,  besides  demanding 
self-subordination  in  tlie  rearing  of  offspring,  occasionallj 
demands  a  furtlier  self-subordination.   • 

We  read  of  bisons  that,  during  the  calving  season,  the 
bulls  form  an  encircling  guard  round  the  herd  of  cows  and 
calves,  to  protect  them  against  wolves  and  other  predatory 
animals :  a  proceeding  which  entails  on  each  bull  some 
danger,  but  which  conduces  to  the  preservation,  of  the 
species.  Out  of  a  herd  of  elephants  about  to  emerge  from 
a  forest  to  reach  a  drinking  place,  one  will  first  appear  and 
look  round  in  search  of  dangers,  and,  not  discerning  anv, 
will  then  post  some  others  of  the  herd  to  act  as  watchers ; 
after  which  the  main  body  comes  forth  and  enters  the 
water.  Here  a  certain  extra  risk  is  run  by  the  few  that 
the  many  may  be  the  safer.  In  a  still  greater  degree  we  are 
shown  this  kind  of  action  by  a  troop  of  monkeys,  the  members 
of  which  will  combine  to  defend  or  rescue  one  of  their 
number,  or  will  fitly  arrange  themselves  when  retreating 
from  an  enemy — "the  females,  with  their  young,  leading  the 
way,  the  old  males  bringing  up  the  rear  .  .  .  the  place 
of  danger  ";  for  though  in  any  particular  case  the  species 
may  not  profit,  since  more  mortality  may  result  than  would 
have  resulted,  yet  it  profits  in  the  long  run  by  the  display 
of  a  character  which  makes  attack  on  its  groups  dangerous. 

Evidently,  then,  if  by  such  conduct  one  variety  of  a 
gregarious  species  keeps  up,  or  increases,  its  numbers,  while 
other  varieties,  in  which  self-subordination  thus  directed  does 
not  exist,  fail  to  do  this,  a  certain  sanction  is  acquired 
for  such  conduct.  The  preservation  of  the  species  being 
the  higher  end,  it  results  that  where  an  occasional  mor- 
tality of  individuals  in  defence  of  the  species  furthers  this 
preservation  in  a  greater  degree  than  would  pursuit  of  ex- 
clusive benefit  by  each  individual,  that  which  we  recognize 
as  sub-human  justice  may  rightly  have  this  second  limitation. 

i 

§  11.  It  remains  only  to  point  out  the  order  of  priority, 


SUB-HUMAN   JUSTICE.  15 

and  the  respective  ranges,  of  these  principles.  The  law  of 
relation  between  conduct  and  consequence,  which,  through- 
out the  animal  kingdom  at  large,  brings  prosperity  to  those 
individuals  which  are  structurally  best  adapted  to  their 
conditions  of  existence,  and  which,  under  its  ethical  aspect, 
is  expressed  in  the  principle  that  each  individual  ought  to 
receive  the  good  and  the  evil  which  arises  from  its  own 
nature,  is  the  primary  law  holding  of  all  creatures ;  and  is 
applicable  without  qualification  to  creatures  which  lead 
solitary  lives,  save  by  that  self-subordination  needed  among 
the  higher  of  them  for  the  rearing  of  offspring. 

Among  gregarious  creatures,  and  in  an  increasing  degree 
as  they  co-operate  more,  there  comes  into  play  the  law, 
second  in  order  of  time  and  authority,  that  those  actions 
through  which,  in  fulfilment  of  its  nature,  the  individual 
achieves  benefits  and  avoids  evils,  shall  be  restrained  by  the 
need  for  non-interference  with  the  like  actions  of  associated 
individuals,  A  substantial  respect  for  this  law  in  the 
average  of  cases,  being  the  condition  under  which  alone 
gregariousness  can  continue,  it  becomes  an  imperative  law 
for  creatures  to  which  gregariousness  is  a  benefit.  But, 
obviously,  this  secondary  law  is  simply  a  specification  of 
that  form  which  the  primary  law  takes  under  the  conditions 
of  gregarious  life  ;  since,  by  asserting  that  in  each 
individual  the  inter-actions  of  conduct  and  consequence 
must  be  restricted  in  the  specified  way,  it  tacitly  re-asserts 
that  these  inter-actions  must  be  maintained  in  other  in- 
dividuals, that  is  in  all  individuals. 

Later  in  origin,  and  narrower  in  range,  is  the  third  law, 
that  under  conditions  such  that,  by  the  occasional  sacrifices 
of  some  members  of  a  species,  the  species  as  a  whole 
prospers,  there  arises  a  sanction  for  such  sacrifices,  and  a 
consequent  qualification  of  the  law  that  each  individual  shall 
receive  the  benefits  and  evils  of  its  own  nature. 

Finally,  it  should  be  observed  that  whereas  the  first  law 
is  absolute  for  animals  in  general,  and  whereas  the  second 


16  JUSTICE. 

law  is  absolute  for  gregarious  animals,  tlie  tliird  law  is 
relative  to  the  existence  of  enemies  of  such  kinds  that, 
in  contending  with  them,  the  species  gains  more  than 
it  loses  by  tlie  sacrifice  of  a  few  members ;  and  in  the 
absence  of  such  enemies  this  qualification  imposed  bj  the 
third  law  disappears. 


CHAPTER  in. 

HUMAN  JUSTICE. 

§  12.  The  contents  of  tlie  last  cliapter  foreshadow  the 
contents  of  this.  As_,  from  the  evolution  point  of  view, 
human  life  must  be  regarded  as  a  further  development  of 
sub-human  life,  it  follows  that  from  this  same  point  of  view, 
human  justice  must  be  a  further  development  of  sub-human 
justice.  For  convenience  the  two  are  here  separately  treated, 
but  they  are  essentially  of  the  same  nature,  and  form  parts 
of  a  continuous  whole. 

^Of  man,  as  of  all  inferior  creatures,  the  law  by  conformity 

to  which  the  species  is  preserved,  is  that  among  adults  the 

'  individuals  best  adapted  to  the  conditions  of  their  existence 

shall  prosper  most,  and  that  individuals  least  adapted  to 

the  conditions  of  their  existence  shall  prosper  least — a  law 

which,  if  uninterfered  with,  entails  survival  of  the  fittest, 

and  spread  of  the  most  adapted  varieties.'  And  as  before 

:  so  here,  we  see  that,  ethically  consideredpthis  law  implies 

[that  each  individual  ought  to  receive  the  oenefits  and  the 

(evils  of  his  own  nature  and  consequent  conduct:  neither 

I  being  prevented  from  having  whatever   good  his  actions 

normally  bring  to  him,  nor  allowed  to  shoulder  off  on  tfl-. 

other  persons  whatever  ill  is  brought  to  him  by  his  actionsj 

To  what  extent  such  ill,  naturally   following   from  his 

actions,  may  be  voluntarily  borne  by  other  persons,  it  does 

not  concern  us  now  to  inquire.     The  qualifying  effects  of 


18  JUSTICE. 

pitj,  mercy,  and  generosity,  -will  be  considered  hereafter 
in  tlie  parts  dealing  witli  '' Negative  Beneficence"  and 
"Positive  Beneficence/'  Here  we  are  concerned  only  with 
pure  Justice. 

The  law  thus  originating,  and  thus  ethically  expressed, 
is  obviously  that  which  commends  itself  to  the  common 
apprehension  as  just.  Sayings  and  criticisms  daily  heard 
imply  a  perception  that  conduct  and  consequence  oughi 
not  to  be  dissociated.  When,  of  some  one  who  suffers  a 
disaster,  it  is  said — "  He  has  no  one  to  blame  but  himself," 
there  is  implied  the  belief  that  he  has  not  been  inequitabl} 
dealt  with.  The  comment  on  one  whose  misjudgment  oi 
misbehaviour  has  entailed  evil  upon  him,  that  "he  has 
made  his  own  bed,  and  now  he  must  lie  in  it,"  has  behind  ii 
the  conviction  that  this  connexion  of  cause  and  eff"ect  it 
proper.  Similarly  with  the  remark — "  He  got  no  more  thai 
he  deserved."  A  kindred  conviction  is  implied  when 
convei'sely,  there  results  good  instead  of  evil.  "  He  ha; 
fairly  earned  his  reward; "  "  He  has  not  received  due  recom- 
pense;" are  remarks  indicating  the  consciousness  that  thert 
should  be  a  proportion  between  effort  put  forth  and  advan 
tage  achieved — that  justice  demands  such  a  proportion. 

§  18.  The  truth  that  justice  becomes  more  pronouncec 
as  organization  becomes  higher,  which  we  contemplated  i] 
the  last  chapter,  is  further  exemplified  on  passing  from  sub 
human  justice  to  human  justice.  The  degree  of  justice  anc 
the  degree  of  organization  simultaneously  make  advances 
These  are  shown  alike  by  the  entire  human  race,  and  by  it 
superior  varieties  as  contrasted  with  its  inferior. 

We  saw  that  a  high  species  of  animal  is  distinguishei 
from  a  low  species,  in  the  respect  that  since  its  aggregat 
Bufi'ers  less  mortality  from  incidental  destructive  agencies 
each  of  its  members  continues  en  the  average  for  a  longe 
time  subject  to  the  normal  relation  between  conduct  an 
consequence;  and  here  we  see  that  the  human  race  as 


HUMAN    JUSTICE.  19 

whole,  far  lower  in  its  rate  of  mortality  than  nearly  all  races 
of  inferior  kinds,  usually  subjects  its  members  for  much 
longer  periods  to  the  good  and  evil  results  of  well-^adapted 
and  ill-adapted  conduct.  "We  also  saw  that  as,  among  the 
higher  animals,  a  greater  average  longevity  makes  it 
possible  for  individual  differences  to  show  their  effects  for 
longer  periods,  it  results  that  the  unlike  fates  of  different 
individuals  are  to  a  greater  extent  determined  by  tliat 
normal  relation  between  conduct  and  consequence  which 
constitutes  justice  ;  and  we  here  see  that  in  mankind, 
nnlikenesses  of  faculty  in  still  greater  degrees,  and  for  still 
longer  periods,  work  out  their  effects  in  advantaging  the 
superior  and  disadvantaging  the  inferior  in  the  continuous 
play  of  conduct  and  consequence. 

'  Similarly  is  it  with  the  civilized  varieties  of  mankind  as 
compared  with  the  savage  varieties.  A  still  further 
diminished  rate  of  mortality  implies  that  there  is  a  still 
.larger  proportion,  the  members  of  which  gain  good  from 
well-adapted  acts  and  suffer  evil  from  ill-adapted  acts. 
While  also  it  is  manifest  that  both  the  greater  differences 
of  longevity  among  individuals,  and  the  greater  differences 
of  social  position,  imply  that  in  civilized  societies  more  than 
in  savage  societies,  differences  of  endowment,  and  conse- 
quent differences  of  conduct,  are  enabled  to  cause  their 
appropriate  differences  of  results,  good  or  evil :  the  justice 
is  greater. 

§  14.  More  clearly  in  the  human  race  than  in  lower 
races,  we  are  shown  that  gregariousness  establishes  itself 
because  it  profits  the  variety  in  which  it  arises  ;  partly  by 
furthering  general  safety  and  partly  by  facilitating  sustenta- 
tion.  And  we  are  shown  that  the  degree  of  gregariousness 
is  determined  by  the  degree  in  which  it  thus  subserves  the\ 
interests  of  the  variety.  For  where  the  vnriety  is  one  of 
which  the  members  live  on  wild  food,  they  associate  only  in 
fcmall   groups  :    game    and    fruits  widely  distributed,   can 


20  JUSTICE. 

support  these  only.  But  greater  gregariousness  arises 
where  agriculture  makes  possible  the  support  of  a  large 
number  on  a  small  area;  and  where  the  accompanying 
development  of  industries  introduces  many  and  various 
co-operations. 

We  come  now  to  the  truth — faintly  indicated  among  lower 
beings  and  consj)icuously  displayed  among  human  beings — 
that  the  advantages  of  co-operation  can  be  had  only  by 
conformity  to  certain  requirements  which  association 
imposes.  The  mutual  hindrances  liable  to  arise  during 
the  pursuit  of  their  ends  by  individuals  living  in  proximity, 
must  be  kept  within  such  limits  as  to  leave  a  surplus  of 
advantage  obtained  by  associated  life.)  Some  types  of  men, 
as  the  Abors,  lead  solitary  lives,  because  their  aggressive- 
ness is  such  that  they  cannot  live  together.  And  this 
extreme  case  makes  it  clear  that  though,  in  many  primitive 
groups,  individual  antagonisms  often  cause  quarrels,  yet 
the  groups  are  maintained  because  their  members  derive  a 
balance  of  benefit — chiefly  in  greater  safety.  (  It  is  also 
clear  that  in  proportion  as  communities  become  developed, 
their  division  of  labour  complex,  and  their  transactions 
multiplied,  the  advantages  of  co-operation  can  be  gained 
only  by  a  still  better  maintenance  of  those  limits  to  each 
man's  activities  necessitated  by  the  .simultaneous  activities 
of  others.  A  This  truth  is  illustrated  by  the  unprosperous  or 
decaying  state  of  communities  in  which  the  trespasses  of 
individuals  on  one  another  are  so  numerous  and  great  as 
generally  to  prevent  them  from  severally  receiving  the 
normal  results  of  their  labours. 

The  requirement  that  individual  activities  must  be 
mutually  restrained,  which  we  saw  is  so  felt  among  certain 
inferior  gregarious  creatures  that  they  inflict  punishments 
on  those  who  do  not  duly  restrain  them,  is  a  requirement 
which,  more  imperative  among  men,  and  more  distinctly 
felt  by  them  to  be  a  requirement,  causes  a  still  more  marked 
habit  of  inflicting  punishments  on  offenders.  ■    Though  in 


HUMAN    JUSTICE.  21 

primitive  groups  it  is  commonlj  loft  to  any  one  wlio  is 
injured  to  revenge  liimself  on  the  iujurer  ;  and  though  even 
in  the  societies  of  feudal  Europe,  the  defending  and  en-  - 
forcing  of  his  claims  was  in  many  cases  held  to  be  each 
man's  personal  concern ;  yen  there  has  ever  tended  to  grow 
up  such  perception  of  the  need  for  internal  order,  and  such 
sentiment  accompanying  the  perception,  that  infliction  of 
punishments  by  the  community  as  a  whole,  or  by  its 
established  agents,  has  become  habitual.  And  that  a 
system  of  laws  enacting  restrictions  on  conduct,  and 
punishments  for  breaking  them,  is  a  natural  product  of 
human  life  carried  on  under  social  conditions,  is  shown  by 
the  fact  that  in  numerous  nations  composed  of  various 
types  of  mankind,  similar  actions,  similai-ly  regarded  as 
trespasses,  have  been  similai^ly  forbidden. 

Through  all  which  sets  of  facts  is  manifested  the  truth, 
recognized  practically  if  not  theoretically,  that  each 
individual  carrying  on  the  actions  which  subserve  his  life, 
and  not  prevented  from  receiving  their  normal  results, 
good  and  bad,  shall  carry  on  these  actions  under  such 
restraints  as  are  imposed  by  the  carrying  on  of  kindred 
actions  by  other  individuals,  who  have  similarly  to  receive 
such  normal  results,  good  and  bad.  And  vaguely,  if  not 
definitely,  this  is  seen  to  constitute  what  is  called  justice.      \ 

§  15.  We  saw  that  among  inferior  gregarious  creatures, 
justice  in  its  universal  simple  form,  besides  being  qualified 
by  the  self-subordination  which  parenthood  implies,  and 
in  some  measure  by  the  self-restraint  necessitated  by  as- 
sociation, is,  in  a  few  cases,  further  qualified  in  a  small 
degree  by  the  partial  or  complete  sacrifice  of  individuals 
made  in  defence  of  the  species.  And  now,  in  the  highest 
gregarious  creature,  we  see  that  this  further  qualification 
of  primitive  justice  assumes  large  propoi'tious. 

Ko  longer,  as  among  inferior  beings,  demanded  only  by 


22  JUSTICE. 

the  need  for  defence  against  enemies  of  otlier  kinds,  this 
further  self-subordination  is,  among  human  beings,  also 
demanded  by  the  need  for  defence  against  enemies  of  the 
same  kind.  Having  spi'ead  wherever  there  is  food,  groups 
of  men  have  come  to  be  everywhere  in  one  another's  way  ; 
and  the  mutual  enmities  hence  resulting,  have  made  the 
sacrifices  entailed  by  wars  between  groups,  far  greater 
than  the  sacrifices  made  in  defence  of  groups  against 
inferior  animals.  It  is  doubtless  true  with  the  human  race, 
as  with  lower  races,  that  destruction  of  the  group,  or  the 
variety,  does  not  imply  destruction  of  the  species ;  and  it 
follows  that  such  obligation  as  exists  for  self-subordination 
in  the  interests  of  the  group,  or  the  variety,  is  an  ob- 
ligation of  lower  degree  than  is  that  of  care  of  offspring, 
without  fulfilment  of  which  the  species  will  disappear, 
and  of  lower  degree  than  the  obligation  to  restrain  actions 
within  the  limits  imposed  by  social  conditions,  without  ful- 
filment, or  partial  fulfilment,  of  which  the  group  will 
dissolve.  Still,  it  must  be  regarded  as  an  obligation  to 
the  extent  to  which  the  maintenance  of  the  species  is 
subserved  by  the  maintenance  of  each  of  its  groups. 

But  the  self-subordination  thus  justified,  and  in  a  sense 
rendered  obligatory,  is  limited  to  that  which  is  required  for 
defensive  war.  Only  because  the  pi'eservation  of  the 
group  as  a  whole  conduces  to  preservation  of  its  members' 
lives,  and  their  ability  to  pursue  the  objects  of  life^  is  there 
a  reason  for  the  sacrifice  of  some  of  its  members ;  and  this 
reason  no  longer  exists  when  war  is  offensive  instead  of 
defensive. 

It  may,  indeed,  be  contended  that  since  offensive  wars 
initiate  those  struggles  between  groups  which  end  in  the 
destruction  of  the  weaker,  offensive  wars,  furthering  the 
peopling  of  the  Earth  by  the  stronger,  subserve  the 
interests  of  the  race.  But  even  supposing  that  the  con- 
quered  groups   always   consisted  of   men  having   smaller 


HUMAN   JUSTICE.  23 

mental  or  bodily  fitness  for  war  (wliich  tliey  do  not ;  for  it 
is  in  part  a  question  of  numbers,  and  the  smaller  groups 
may  consist  of  tlie  more  capable  warriors),  tliere  would  still 
be  an  adequate  answer.  It  is  only  during  tlie  earlier 
stages  of  liuaian  progress  that  the  development  of 
strength,  courage,  and  cunning,  are  of  chief  importance. 
After  societies  of  considerable  size  hare  been  formed,  and 
the  subordination  needed  for  organizing  them  produced, 
other  and  higher  faculties  become  those  of  chief  impor- 
tance ;  and  the  struggle  for  existence  carried  on  by  violence, 
does  not  always  further  the  survival  of  the  fittest.  The 
fact  that  but  for  a  mere  accident  Persia  would  have  con- 
quered Greece,  and  the  fact  that  the  Tartar  hordes  very 
nearly  overwhelmed  European  civilization,  show  that 
offensive  war  can  be  trusted  to  subserve  the  interests  of 
the  race  only  when  the  capacity  for  a  high  social  life  does 
not  exist;  and  that  in  proportion  as  this  capacity  develops, 
offensive  war  tends  more  and  more  to  hinder,  rather  than 
to  further,  human  welfare.  In  brief  we  may  say  that 
the  arrival  at  a  stage  in  which  ethical  considerations  come 
to  be  entertained,  is  the  arrival  at  a  stage  in  which 
offensive  war,  by  no  means  certain  to  further  predominance 
of  races  fitted  for  a  high  social  life,  and  certain  to  cause 
injurious  moral  reactions  on  the  conquering  as  well  as  on  the 
conquered,  ceases  to  be  justifiable  ;  and  only  defensive 
war  retains  a  quasi-ethical  justification. 

And  here  it  is  to  be  remarked  that  the  self-subordination 
which  defensive  war  involves,  and  the  need  for  such 
qualification  of  the  abstract  principle  of  justice  as  it 
implies,  belong  to  that  transitional  state  necessitated  by 
the  physical-force  conflict  of  races;  and  that  they  must 
disappear  when  there  is  reached  a  peaceful  state.  That  is 
to  say,  all  questions  concerning  the  extent  of  such  quali- 
fications pertain  to  what  we  have  distinguished  as  relative 
ethics;    and  are  not  recognized  by  that  absolute   ethics 


24  JUSTICE. 

which  is  concerned  with  the  principles  of  right  conduct  in 
a  society  formed  of  men  fully  adapted  to  social  life. 

This  distinction  I  emphasize  here  because,  throughout 
succeeding  chapters,  we  stall  find  that  recognition  of  it 
helps  US  to  disentangle  the  involved  problems  of  political 
ethics. 


CHAPTER  IV. 

THE   SENTIMENT   OF   JUSTICE. 

§  16.  Acceptance  of  the  doctrine  of  organic  evolution 
determines  certain  ethical  conceptions.  The  doctrine 
implies  that  the  numerous  organs  in  each,  of  the  innumer- 
able species  of  animals,  have  been  either  directly  or 
indirectly  moulded  into  fitness  for  the  requirements  of  life 
by  constant  converse  with  those  requirements.  Simul- 
taneously, through  nervous  modifications,  there  have  been 
developments  of  the  sensations,  instincts,  emotions,  and 
intellectual  aptitudes,  needed  for  the  appropriate  uses  of 
these  organs  ;  as  we  see  in  caged  rodents  which  exercise 
their  jaw-muscles  and  incisors  by  purposeless  gnawing,  in 
gregarious  creatures  which  are  miserable  if  they  cannot 
join  tbeir  fellows,  in  beavers  which,  kept  in  confinement, 
show  their  passion  for  dam-building  by  heaping  up  Avhatever 
sticks  and  stones  they  can  find. 

Has  this  process  of  mental  adaptation  ended  with  primi- 
tive man  ?  Are  human  beings  incapable  of  having  their 
feelings  and  ideas  progressively  adjusted  to  the  modes  of 
life  imposed  on  them  by  the  social  state  into  which  they 
bave  grown  ?  Shall  we  suppose  that  the  nature  which 
fitted  them  to  the  exigencies  of  savage  life  has  remained 
unchanged,  and  will  remain  unchanged,  by  the  exigencies 
of  civilized  life  ?  Or  stall  we  suppose  that  this  aboriginal 
nature,  by  repression  of  some  traits  and  fostering  of  others, 


26  JUSTICE. 

is  made  to  approacli  more  and  more  to  a  nature  whicli  finds 
developed  society  its  appropriate  environment^  and  tlie 
required  activities  its  normal  ones  ?  There  are  many 
believers  in  the  doctrine  of  evolution  who  seem  to  have  no 
faith  in  the  continued  adaptability  of  mankind.  While 
glancing  but  carelessly  at  the  evidence  furnished  by  com- 
parisons of  different  human  races  with  one  another,  and  of 
the  same  races  in  different  ages,  they  ignore  entirely  the 
induction  from  the  phenomena  of  life  at  large.  But  if  there 
is  an  abuse  of  the  deductive  method  of  reasoning  there  is 
also  an  abuse  of  the  inductive  method.  One  who  refused 
to  believe  that  a  new  moon  would  in  a  fortnight  become 
full  and  then  wane,  and,  disregarding  observations 
accumulated  throughout  the  past,  insisted  on  watching  the 
successive  phases  before  he  was  convinced,  would  be  con- 
sidered inductive  in  an  irrational  degree.  But  there  might 
not  unfairly  be  classed  with  him  those  who,  slighting  the 
inductive  proof  of  unlimited  adjustability,  bodily  and 
mental,  which  the  animal  kingdom  at  large  presents,  will 
not  admit  the  adjustability  of  human  nature  to  social  life 
until  the  adjustment  has  taken  place :  nay,  even  ignore  the 
evidence  that  it  is  taking  place. 

Here  we  shall  assume  it  to  be  an  inevitable  inference 
from  the  doctrine  of  organic  evolution,  that  the  highest 
type  of  living  being,  no  less  than  all  lower  types,  must  go 
on  moulding  itself  to  those  requirements  which  circum- 
stances impose.  And  we  shall,  by  implication,  assume  that 
moral  changes  are  among  the  changes  thus  wrought  out. 

§  17.  The  fact  that  when  surfeit  of  a  favourite  food 
has  caused  sickness,  there  is  apt  to  follow  an  aversion  to 
that  food,  shows  how,  in  the  region  of  the  sensations, 
experiences  establish  associations  which  influence  conduct. 
And  the  fact  that  the  house  in  which  a  wife  or  child  died, 
or  in  which  a  long  illness  was  suffered,  becomes  so  associated 
with  painful   states  of  mind  as  to  be  shunned,  sufficiently 


THE    SENTIMENT   OF   JUSTICE.  27 

illustrates,  in  the  emotional  region,  tHe  mode  in  whicli 
actions  may  be  determined  by  mental  connexions  formed  in 
tlie  course  of  life.  When  the  circumstances  of  a  species 
make  certain  relations  between  conduct  and  consequence 
habitual,  the  appropriately-linked  feelings  may  come  to 
characterize  the  species.  Either  inheritances  of  modifica- 
tions produced  by  habit,  or  more  numerous  survivals  of 
individuals  having  nervous  structures  which  have  varied  in 
fit  ways,  gradually  form  guiding  tendencies,  prompting 
appropriate  behaviour  and  deterring  from  inappropriate. 
The  contrast  between  fearless  birds  found  on  islands  never 
before  visited  by  man,  and  the  birds  around  us,  which  show 
fear  of  man  immediately  they  are  out  of  the  nest,  exemplifies 
such  adaptations. 

By  virtue  of  this  process  there  have  been  produced  to 
some  extent  among  lower  creatui'es,  and  there  are  being- 
further  produced  in  man,  the  sentiments  appropriate  to 
social  life.  Aggressive  actions,  while  they  are  habitually 
injurious  to  the  group  in  which  they  occur,  are  not 
unfrequently  injurious  to  the  individuals  committing  them; 
since,  though  certain  pleasures  may  be  gained  by  them, 
they  often  entail  pains  greater  than  the  pleasures.  Con- 
versely, conduct  restrained  within  the  required  limits, 
calling  out  no  antagonistic  passions,  favours  harmonious 
co-operation,  profits  the  group,  and,  by  implication,  profits 
the  average  of  its  individuals.  Consequently,  there  results, 
other  things  equal,  a  tendency  for  groups  formed  of  members 
having  this  adaptation  of  nature,  to  survive  and  spread. 

Among  the  social  sentiments  thus  evolved,  one  of  chief 
importance  is  the  sentiment  of  justice.  Let  us  now  consider 
more  closely  its  nature. 

§  18.  Stop  an  animal's  nostrils,  and  it  makes  frnntio 
efi"orts  to  free  its  head.  Tie  its  limbs  together,  and  its 
struggles  to  get  them  at  liberty  are  violent.  Chain  it  by 
the  neck  or  leg,  and  it  is  some  time  before  it  ceases  its 


28  JUSTICE. 

attempts  to  escape.  Put  it  in  a  cage,  and  it  long  contluues 
restless.  Generalizing  these  instances,  we  see  tliat  in 
proportion  as  the  restraints  on  actions  by  which  life  is 
maintained  are  extreme,  the  resistances  to  them  are  great. 
Conversely,  the  eagerness  with  which  a  bird  seizes  the 
opportunity  for  taking  flight,  and  the  joy  of  a  dog  when 
liberated,  show  how  strong  is  the  love  of  unfettered  move- 
ment. 

Displaying  like  feelings  in  like  ways,  man  displays  them 
in  other  and  wider  ways.  He  is  irritated  by  invisible 
restraints  as  well  as  by  visible  ones ;  and  as  his  evolution 
becomes  higher,  he  is  affected  by  circumstances  and  actions 
which  in  more  remote  ways  aid  or  hinder  the  pursuit  of 
ends.  A  parallel  will  elucidate  this  ^^^jj^rfflNMH^'^^V  ^^® 
love  of  property  is  gratified  only  by  p(4HHKi|f  food  a-nd 
shelter,  and,  presently,  of  clothing  ^^^^K^f^^t^ards  it  is 
gratified  by  possession  of  the  weapons  aKxoois  which  aid  in 
obtaining  these,  then  by  possession  of  the  raw  materials  that 
serve  for  making  weajDons  and  tools  and  for  other  purposes, 
then  by  possession  of  the  coin  which  purchases  them  as  well 
as  things  at  large,  then  by  possession  of  promises  to  pay 
exchangeable  for  the  coin,  then  by  a  lien  on  a  banker,  regis- 
tered in  a  pass-book.  That  is,  there  comes  to  be  pleasure  in 
an  ownership  more  and  more  abstract  and  more  remote  from 
material  satisfactions.  Similarly  with  the  sentiment  of 
justice.  Beginning  with  the  joy  felt  in  ability  to  use  the 
bodily  powers  and  gain  the  resulting  benefits,  accompanied 
by  irritation  at  direct  interferences,  this  gradual!}^  responds 
to  wider  relations :  being  excited  now  by  the  incidents  of 
personal  bondage,  now  by  those  of  political  bondage,  now 
by  those  of  class-privilege,  and  now  by  small  political 
.changes.  Eventually  this  sentiment,  sometimes  so  little 
developed  in  the  Negro  that  he  jeers  at  a  liberated  com- 
panion because  he  has  no  master  to  take  care  of  him, 
becomes  so  much  developed  in  the  Englishman  that  the 
slightest  infraction  of  some  mode  of  formal  procedure  at  a 


THE    SENTIMENT    OF   JUSTICE.  29 

public  meeting  or  iu  Parliament,  wliich  cannot  intrinsically 
concern  him,  is  vehemently  opposed  because  in  some 
distant  and  indirect  way  it  may  help  to  give  possible 
powers  to  un-named  authorities  who  may  perhaps  impose 
unforeseen  burdens  or  restrictions. 

Clearly^  then,  the  egoistic  sentiment  of  justice  is  a  sub- 
jective attribute  which  answers  to  that  objective  require- 
ment constituting  justice — the  requirement  that  each  adult 
shall  receive  the  results  of  his  own  nature  and  consequent 
actions.  For  unless  the  faculties  of  all  kinds  have  free 
play,  these  results  cannot  be  gained  or  suffered,  and  unless 
there  exists  a  sentiment  which  prompts  maintenance  of  the 
sphere  for  this  free  play,  it  will  be  trenched  ujpon  and  the 
free  play  impeded. 

§19.  While  "we  may  thus  understand  how  the  egoistic 
sentiment  of  justice  is  developed,  it  is  much  less  easy  to 
understand  how  there  is  developed  the  altruistic  sentiment 
of  justice.  On  the  one  hand,  the  implication  is  that  the 
altruistic  sentiment  of  justice  can  come  into  existence  only 
in  the  course  of  adaptation,  to  social  life.  On  the  other 
hand  the  implication  is  that  social  life  is  made  possible  only 
by  maintenance  of  those  equitable  relations  which  imply 
the  altruistic  sentiment  of  justice.  How  can  these  reciprocal 
requirements  be  fulfilled  ? 

The  answer  is  that  the  altruistic  sentiment  of  justice  can 
come  into  existence  only  by  the  aid  of  a  sentiment  which 
temporarily  supplies  its  place,  and  restrains  the  actions 
prompted  by  pure  egoism — a  pro-altruistic  sentiment  of 
justice,  as  we  may  call  it.  This  has  several  components 
Nvhich  we  must  successively  glance  at. 

The  first  deterrent  from  aggression  is  one  which  Ave  see 
among  animals  at  large — the  fear  of  retaliation.  Among 
creatures  of  the  same  species  the  food  obtained  by  one,  or 
place  of  vantage  taken  possession  of  by  it,  is  in  some 
measure  insured  to  it  by  the  dread  which  most  others  feel 


30  JUSTICE. 

of  the  vengeance  tliat  may  follow  any  attempt  to  take  it 
away;  and  among  men_,  especially  during  early  stages  of 
social  life,  it  is  chiefly  such  dread  which  secures  for  each 
man  free  scope  for  his  activities,  and  exclusive  use  of  what- 
ever they  bring  him. 

A  further  restraint  is  fear  of  the  reprobation  likely  to  be 
shown  by  unconcerned  members  of  the  group.  Though  in 
the  expulsion  of  a  "  rogue  "  elephant  from  the  herd,  or  the 
slaying  of  a  sinning  member  of  the  flock  by  rooks  or  storks, 
we  see  that  even  among  animals  individuals  suffer  from  an 
adverse  public  opinion;  yet  it  is  scarcely  probable  that 
among  animals  expectation  of  general  dislike  prevents 
encroachment.  But  among  mankind,  "  looking  before  and 
after"  to  a  greater  extent,  the  thought  of  social  disgrace 
is  usually  an  additional  check  on  ill-behaviour  of  man  to  man. 

To  these  feelings,  which  come  into  play  before  there  is 
any  social  organization,  have  to  be  added  those  which 
arise  after  political  authority  establishes  itself.  When  a 
successful  leader  in  war  acquires  permanent  headship,  and 
comes  to  have  at  heart  the  maintenance  of  his  power,  there 
arises  in  him  a  desire  to  prevent  the  trespasses  of  his  people 
one  against  another ;  since  the  resulting  dissensions  weaken 
his  tribe.  The  rights  of  personal  vengeance  and,  as  in 
feudal  times,  of  private  war,  are  restricted;  and, 
simultaneously,  there  grow  up  interdicts  on  the  acts  which 
cause  them.  Dread  of  the  penalties  which  follow  breaches 
of  these,  is  an  added  restraint. 

Ancestor-worship  in  general,  developing,  as  the  society 
develops,  into  special  propitiation  of  the  dead  chief's  ghost, 
and  presently  the  dead  king's  ghost,  gives  to  the 
injunctions  he  uttered  during  life  increased  sanctity;  and 
when,  with  establishment  of  the  cult,  he  becomes  a  god, 
his  injunctions  become  divine  commands  with  dreaded 
punishments  for  breaches  of  them. 

These  four  kinds  of  fear  co-operate.  The  dread  of 
retaliation,  the  dread  of  social  dislike,  the  dread  of  legal 


^\  1 


THE    SENTIMENT    OF  JUSTICE.  81 

pnnishirent,  and  tlie  dread  of  divine  vengeance,  united  in 
various  proportions,  form  a  body  of  feeling  which  checks 
the  primitive  tendency  to  pursue  the  objects  of  desire 
■u-ithout  regard  to  the  interests  of  felloAV-men.  Containin'T 
none  of  the  altruistic  sentiment  of  justice,  properly  so 
called,  this  pro-altruistic  sentiment  of  justice  serves  tem- 
porarily to  cause  respect  for  one  another's  claims^  and  so  to 
make  social  co-operation  possible. 

§  20.  Creatureswhich  become  gregarious  tend  to  become 
sympathetic  in  degrees  proportionate  to  their  intelligences. 
Not,  indeed,  that  the  resulting  sympathetic  tendency  is 
exclusively,  or  even  mainly,  of  that  kind  which  the  words 
ordinarily  imply;  for  in  some  there  is  little  beyond 
sympathy  in  fear,  and  in  others  little  beyond  sympathy  in 
ferocity.  All  that  is  meant  is  that  in  gregarious  creatures 
a  feeling  displayed  by  one  is  apt  to  arouse  kindred  feelings 
in  others,  and  is  apt  to  do  this  in  proportion  as  others  are 
intelligent  enough  to  appreciate  the  signs  of  the  feeling. 
In  two  chapters  of  the  Frincijjles  of  Psychologij — "  Sociality 
and  Sympathy"  and  "Altruistic  Sentiments" — I  have 
endeavoured  to  show  how  sympathy  in  general  arises,  and 
how  there  is  eventually  produced  altruistic  sympathy. 

The  implication  is,  then,  that  the  associated  state  having 
been  maintained  among  men  by  the  aid  of  the  pro-altruistic 
sentiment  of  justice,  there  have  been  maintained  the  con- 
ditions under  which  the  altruistic  sentiment  of  justice 
itself  can  develop.  In  a  permanent  group  there  occur, 
generation  after  generation,  incidents  simultaneously 
drawing  from  its  members  manifestations  of  like  emotions 
— rejoicings  over  victories  and  escapes,  over  prey  jointly 
captured,  over  supplies  of  wild  food  discovered  ;  as  well  as 
laments  over  defeats,  scarcities,  inclemencies,  &c.  And  to 
these  greater  pleasures  and  pains  felt  in  common  by  all,  and 
so  expressing  themselves  that  each  sees  in  others  the  signs  of 
feelings  like  those  which  he  has  and  is  displajing,  must  be 


32  JUSTICE. 

added  the  smaller  pleasures  and  pains  daily  resulting  from 
meals  taken  together,  amusements,  games,  and  from  the 
not  infrequent  adverse  occurrences  which  affect  several 
persons  at  once.  Thus  there  is  fostered  that  sympathy 
which  makes  the  altruistic  sentiment  of  justice  possible. 

But  the  altruistic  sentiment  of  justice  is  slow  in  assuming 
a  high  form,  partly  because  its  primary  component  does  not 
become  highly  developed  until  a  late  phase  of  progress, 
partly  because  it  is  relatively  complex,  and  partly  because 
it  implies  a  stretch  of  imagination  not  possible  for  low 
intelligences.     Let  us  glance  at  each  of  these  reasons. 

Every  altruistic  feeling  presupposes  experience  of  the 
corresponding.^aistic  feeling.  As,  until  pain  has  been  felt 
there  cannot  be  sympathy  with  pain,  and  as  one  who  has  no 
ear  for  music  cannot  enter  into  the  pleasure  which  music 
gives  to  others ;  so,  the  altruistic  sentiment  of  justice  can 
arise  only  after  the  egoistic  sentiment  of  justice  has  arisen. 
Hence  where  this  has  not  been  developed  in  any  considerable 
degree,  or  has  been  repressed  by  a  social  life  of  an  adverse 
kind,  the  altruistic  sentiment  of  justice  remains  rudimentary. 

The  complexity  of  the  sentiment  becomes  manifest  on 
observing  that  it  is  not  concerned  only  with  concrete 
pleasures  and  pains,  but  is  concei-ned  mainly  with  certain 
of  the  circumstances  under  which  these  are  obtainable  or 
preventible.  As  the  egoistic  sentiment  of  justice  is  gratified 
by  maintenance  of  those  conditions  which  render  achieve- 
ment of  satisfactions  unimpeded,  and  is  irritated  by  the 
breaking  of  those  conditions,  it  results  that  the  altruistic 
sentiment  of  justice  requires  for  its  excitement  not  only  the 
ideas  of  such  satisfactions  but  also  the  ideas  of  those 
conditions  which  are  in  the  one  case  maintained  and  in  the 
other  case  broken. 

Evidently,  therefore,  to  be  caj^able  of  this  sentiment  in 
a  developed  form,  the  faculty  of  mental  representation  must 
"be  relatively  great.  Where  the  feelings  with  which  there 
is  to  be  sympathy  are   simple   pleasures   and  pains,   the 


THE    SENTIMENT   OP   JUSTICE.  33 

higber  gregarious  animals  occasionally  display  it :  pity  and 
e^enerosity  are  from  time  to  time  felt  by  them  as  well  as 
by  human  beings.  But  to  conceive  simultaneously  not  only 
the  feelings  produced  in  another,  but  the  plexus  of  acts  and 
relations  involved  in  the  production  of  such  feelings,  pre- 
supposes the  putting  together  in  thought  of  more  elements 
than  an  inferior  creature  can  grasp  at  the  same  time.  And 
when  we  come  to  those  most  abstract  forms  of  the  senti- 
ment of  justice  which  are  concerned  with  public  arrange- 
ments, we  see  that  only  the  higher  varieties  of  men  are 
capable  of  so  conceiving  the  ways  in  which  good  or  bad 
institutions  and  laws  will  eventually  afifect  their  spheres  of 
action,  as  to  be  prompted  to  support  or  oppose  them; 
and  that  only  among  these,  therefore,  is  there  excited, 
under  such  conditions,  that  sympathetic  sentiment  of 
justice  which  makes  them  defend  the  political  interests  of 
fellow-citizens. 

There  is,  of  course,  a  close  connexion  between  the  senti- 
ment of  justice  and  the  social  type.  Predominant  militancy, 
by  the  coercive  form  of  organization  it  implies,  alike  in 
the  fighting  body  and  in  the  society  which  supports  it, 
affords  no  scope  for  the  egoistic  sentiment  of  justice,  but, 
contrariwise,  perpetually  tramples  on  it ;  and,  at  the  same 
time,  the  sympathies  which  originate  the  altruistic  sentiment 
of  justice  are  perpetually  seared  by  militant  activities. 
On  the  other  hand,  in  proportion  as  the  regime  of  status  is 
replaced  by  the  regime  of  contract,  or,  in  other  words,  as 
fast  as  voluntary  co-operation  which  characterizes  the 
industrial  type  of  society,  becomes  more  general  than 
compulsory  co-operation  which  characterizes  the  militant 
type  of  society,  individual  activities  become  less  restrained, 
and  the  sentiment  which  rejoices  in  the  scope  for  them 
is  encouraged;  while,  simultaneously,  the  occasions  for 
repressing  the  sympathies  become  less  frequent.  Hence, 
during  warlike  phases  of  social  life  the  sentiment  of  justice 
retrogrades,  while  it    advances   during  peaceful    phases. 


34  JUSTICE. 

and  can  reacli  its  full  deyelopment  only  in  a  permanently 
peaceful  state.* 

*  Permanent  peace  does  in  a  few  places  exist,  and  where  it  exists  the 
sentiment  of  justice  is  exceptionally  strong  and  sensitive.  I  am  glad  to  have 
again  the  occasion  for  pointing  out  that  among  men  called  uncivilized, 
there  are  some,  distinguished  by  the  entire  absence  of  warlike  activities,  who 
in  their  characters  put  to  shame  the  peoples  called  civilized.  In  Folitical 
Institutions,  §§  437  and  574,  I  have  given  eight  examples  of  this  connexion 
of  facts,  taken  from  races  of  different  types. 


CHAPTER  y. 

THE  IDEA  OF  JUSTICE. 

§  21.  While  describing  the  sentiment  of  justice  tie 
way  has  been  prepared  for  describing  the  idea  of  justice. 
Though  the  two  are  intimately  connected  they  may  be 
clearly  distinguished. 

One  who  has  dropped  his  pocket-book  and,  turning 
round,  finds  that  another  who  has  picked  it  up  will  not 
surrender  it,  is  indignant.  If  the  goods  sent  home  by  a 
shopkeeper  are  not  those  he  purchased,  he  protests  against 
the  fraud.  Should  his  seat  at  a  theatre  be  usurped  during 
a  momentary  absence,  he  feels  himself  ill-used.  Morning 
noises  from  a  neighbour's  poultry  he  complains  of  as 
grievances.  And,  meanwhile,  he  sympathizes  with  the 
anger  of  a  friend  who  has  been  led  by  false  statements  to 
join  a  disastrous  enterprise,  or  whose  action  at  law  has 
been  rendered  futile  by  a  flaw  in  the  procedure.  But 
though,  in  these  cases,  his  sense  of  justice  is  offended,  he 
may  fail  to  distinguish  the  essential  trait  which  in  each 
case  causes  the  ofl^ence.  He  may  have  the  sentiment 
of  justice  in  full  measure  while  his  idea  of  justice 
remains  vague. 

This  relation  between  sentiment  and  idea  is  a  matter  of  / 
course.  The  ways  in  which  men  trespass  on  one  another  | 
become  more  numerous  in  their  kinds,  and  more  involved,  ; 


36  JUSTICE. 

as  society  gro-svs  more  complex ;  and  tliey  must  he  experi- 
enced in  their  many forms^  generation  after  generation^  before 
analysis  can  make  clear  the  essential  distinction  between 
legitimate  acts  and  illegitimate  acts.  The  idea  emerges 
and  becomes  definite  in  the  course  of  the  experiences 
that  action  may  be  carried  up  to  a  certain  limit  without 
causing  resentment  from  others,  but  if  carried  beyond  that 
limit  produces  resentment.  Such  experiences  accumulate ; 
and  gradually,  along  with  repugnance  to  the  acts  which 
bring  reactive  pains,  there  arises  a  conception  of  a  limit 
to  each  kind  of  activity  up  to  which  there  is  freedom 
to  act.  But  since  the  kinds  of  activity  are  many  and 
become  increasingly  various  with  the  development  of  social 
life,  it  is  a  long  time  before  the  general  nature  of  the 
limit  common  to  all  cases  can  be  conceived.* 

A  further  reason  for  this  slowness  of  development  should 
be  recognized.  Ideas  as  well  as  sentiments  must,  on  the 
average,  be  adjusted  to  the  social  state.  Hence,  as  war  has 
been  frequent  or  habitual  in  nearly  all  societies,  such  ideas 
of  justice  as  have  existed  have  been  perpetually  con- 
fused by  the  conflicting  requirements  of  internal  amity  and 
external  enmity. 

§  22.  Already  it  has  been  made  clear  that  the  idea  of 
justice,  or  at  least  the  human  idea  of  justice,  contains  two 

*  The  genesis  of  the  idea  of  simple  limits  to  simple  actions  is  exhibited  to 
us  by  intelligent  animals,  and  serves  to  elucidate  the  process  in  the  case  of 
more  complex  actions  and  less  obvious  limits.  I  refer  to  the  dogs  of  Con- 
stantinople, among  which,  if  not  between  individuals  yet  between  groups  of 
individuals,  there  are  tacit  assertions  of  claims  and  penalties  for  invasions  of 
claims.  This  well-known  statement  has  been  recently  verified  in  a  striking 
way  in  the  work  of  Major  E.  C.  Johnson,  On  the  Track  of  the  Crescent.  He 
Bays  (pp.  58-9) : — "  One  evening  I  was  walking  [in  Constantinople]  with  an 
English  ofScer  of  gendarmerie  when  a  bitch  came  up  and  licked  his  hand. 
.  .  .  She  followed  us  a  little  way,  and  stopped  short  in  the  middle  of  the 
street.  She  wagged  her  tail,  and  looked  wistfully  after  us,  but  never  stirred 
when  we  called  her.  A  few  nights  afterwards  .  .  .  the  same  bitch  .  .  . 
recognized  me  .  .  .  and  followed  me  to  the  boundary  of  her  district." 


THE    IDEA   OF   JUSTICE.  87 

elements.  On  tlie  one  Land,  tliere  is  that  positive  element 
implied  by  each  man's  recognition  of  his  claims  to  unimpeded 
activities  and  tlie  benefits  they  bring.  On  the  other  hand, 
there  is  that  negative  element  implied  by  the  consciousness 
of  limits  which  the  presence  of  other  men  having  like 
claims  necessitates.  Two  opposite  traits  in  these  two 
components  especially  arrest  the  attention. 

Inequality  is  the  primordial  ideal  suggested.  For  if  the 
principle  is  that  each  shall  receive  the  benefits  and  evils  due 
to  his  own  nature  and  consequent  conduct,  then,  since  men 
differ  in  their  powers,  there  must  be  differences  in  the  results 
of  their  conduct.  Unequal  amounts  of  benefit  are  implied. 
-  Mutual  limitations  to  men's  actions  suggest  a  contrary 
idea.  "When  it  is  seen  that  if  each,  pursues  his  ends 
regardless  of  his  neighbour's  claims,  quarrels  must  result, 
there  arises  the  consciousness  of  bounds  which  must  be  set 
to  the  doings  of  each,  to  avoid  the  quarrels.  Experience 
shows  that  these  bounds  are  on  the  average  the  same  for 
all.  And  the  thought  of  spheres  of  action  bounded  by 
one  another,  which  hence  results,  involves  the  conception 
of  equality. 

Unbalanced  appreciations  of  these  two  factors  in  human 
justice,  lead  to  divergent  moral  and  social  tlieories,  which 
we  must  now  glance  at. 

§  23.  In  some  of  the  rudest  men  the  appreciations 
are  no  higher  than  those  which  we  see  among  inferior 
gregarious  animals.  Here  the  stronger  takes  what  he 
pleases  from  the  weaker  without  exciting  general  repro- 
bation— as  among  the  Dogribs  ;  while,  elsewhere,  there  is 
practised  and  tacitly  approved  something  like  communism 
— as  among  the  Fuegians.  But  where  habitual  war  has 
developed  political  organization,  the  idea  of  inequality 
becomes  predominant.  If  not  among  the  conquered,  who 
are  made  slaves,  yet  among  the  conquerors,  who  naturally 


38  JUSTICE. 

think  of  tliat  wliicli  conduces  to  tlieir  interest  as  tliat  wliicTi 
ought  to  be,  there  is  fostered  this  element  in  the  conception 
of  justice  which  implies  that  superiority  shall  Lave  the 
benefits  of  superiority. 

Though  the  Platonic  dialogues  may  not  be  taken  as 
measures  of  Greek  belief,  yet  we  may  gather  from  them 
what  beliefs  were  general.  Glaucon,  describing  a  current 
opinion,  says : — 

"  This,  as  they  affirm,  is  the  origin  and  nature  of  justice : — there  is  a 
mean  or  compromise  between  the  best  of  all,  which  is  to  do  and  not  to  suffer 
injustice,  and  the  worst  of  all,  which  is  to  suffer  without  the  power  of 
retaliation ;  and  justice,  being  the  mean  between  the  two,  is  tolerated  not  as 
good,  but  as  the  lesser  evil."  And  immediately  afterwards  it  is  said  that 
men  "  are  only  diverted  into  the  path  of  justice  by  the  force  of  law." 

In  this  significant  passage  several  things  are  to  be  noted. 
There  is  first  a  recognition  of  the  fact,  above  indicated,  that 
at  an  early  stage  the  practice  of  justice  is  initiated  by  the 
dread  of  retaliation,  and  the  conviction,  suggested  by 
experience,  that  on  the  whole  it  is  desirable  to  avoid 
aggression  and  to  respect  the  limit  which  compromise 
implies  :  there  is  no  thought  of  intrinsic  flagitiousness  in 
aggression,  but  only  of  its  impolicy.  Further,  the  limit  to 
each  man^s  actions,  described  as  *'  a  mean  or  compromise," 
and  respect  for  which  is  called  ''  the  path  of  justice,'^  is 
said  to  be  established  only  "  by  the  force  of  law."  Law 
is  not  considered  as  an  expression  of  justice  otherwise 
cognizable,  but  as  itself  the  source  of  justice;  and  hence 
results  the  meaning  of  a  preceding  proposition,  that  it  is 
just  to  obey  the  law.  Thirdly,  there  is  an  implication  that 
were  it  not  for  retaliation  and  legal  penalties,  the  stronger 
might  with  propriety  take  advantage  of  the  weaker.  There 
is  a  half-expressed  belief  that  superiority  ought  to  have 
all  the  advantages  which  superiority  can  take  :  the  idea  of 
inequality  occupies  a  prominent  place,  while  the  idea  of 
equality  makes  no  definite  appearance. 

What  was  the  opinion  of  Plato,  or  rather  of  Socrates,  on 
the  matter  is  not  very  easy  to  find  out.     Greek  ideas  on 


THE    IDEA   OF   JUSTICE.  39 

many  matters  had  not  yet  reached  the  stage  of  definiteness, 
and  throughout  the  dialogues  the  thinking  is  hazy.  Justice, 
which  is  in  some  places  exemplified  by  honesty,  is  elsewhere 
the  equivalent  of  virtue  at  large,  and  then  (to  quote  from 
Jowett's  summary)  is  regarded  as  "universal  order  or  well 
being,  first  in  the  State,  and  secondly  in  the  individual.^' 
This  last,  which  is  the  finished  conclusion,  implies  estab- 
lished predominance  of  a  ruling  class  and  subjection  of 
the  rest.  $  Justice  consists  "  in  each  of  the  three  classes 
doing  the  work  of  its  own  class  :  "  carpenter,  shoemaker, 
or  what  not,  "  doing  each  his  own  business,  and  not 
another's ;  "  and  all  obeying  the  class  whose  business  it  is 
to  rule.*  ♦ThusJJia-id£aL_of_4u.sticeJa-jd£^ 
ideaofjnequality.  Though  there  is  some  recognition  of 
equality  of  positions  and  of  claims  among  members  of  the 
same  class,  yet  the  regulations  respecting  community  of 
wives  &c.  in  the  guardian-class,  have  for  their  avowed 
purpose  to  establish,  even  within  that  class,  unequal 
privileges  for  the  benefit  of  the  superior. 

That  the  notion  of  justice  had  this  general  character 
among  the  Greeks,  is  further  shown  by  the  fact  that  it 
recurs  in  Aristotle.  In  Chapter  V.  of  his  Politics,  he 
concludes  that  the  relation  of  master  and  slave  is  both 
advantageous  and  just. 

But  now  observe  that  though  in  the  Greek  conception  of 

*  On  another  page  there  is  furnished  a  typical  example  of  Socratic 
reasoning.  It  is  held  to  be  a  just  "  principle  that  individuals  are  neither  to 
take  what  is  another's,  nor  to  be  deprived  of  what  is  their  own."  From  this 
it  is  inferred  that  justice  consists  in  "having  and  doing  what  is  a  man's 
own ;  "  and  then  comes  the  further  inference  that  it  is  unjust  for  one  man 
to  assume  another's  occupation,  and  "  force  his  way"  out  of  one  class  into 
another.  Here,  then,  because  a  man's  own  property  and  his  own  occupation 
are  both  called  his  own,  the  same  conclusion  is  drawn  concerning  both.  Two 
fallacies  are  involved— the  one  that  a  man  can  "  own  "  a  trade  in  the  same 
way  tliat  he  owns  a  coat,  and  the  other  that  because  he  may  not  be  deprived 
of  the  coat  he  must  be  restricted  to  the  trade.  The  Tlatonic  dialogues  are 
everywhere  vitiated  by  fallacies  of  this  kind,  caused  by  confounding  words 
with  things — unity  of  name  with  unity  of  nature. 


40  JUSTICE. 

justice  there  predominates  the  idea  of  inequality,  wliile  the 
idea  of  equality  is  inconspicuous,  the  inequality  refers,  not 
to  the  natural  achievement  of  greater  rewards  by  greater 
merits,  but  to  the  artiflcial  apportionment  of  greater  rewards 
to  greater  merits.  It  is  an  inequality  mainly  established  by 
authority.  The  gradations  in  the  civil  organization  are 
of  the  same  nature  as  those  in  the  military  organization. 
Regimentation  pervades  both;  and  the  idea  of  justice  is 
conformed  to  the  traits  of  the  social  structure. 

And  this  is  the  idea  of  justice  proper  to  the  militant  type 
at  large,  as  we  are  again  shown  throughout  Europe  in  sub- 
sequent ages.  It  will  suffice  to  point  out  that  along  with 
the  different  law-established  positions  and  privileges  of 
different  ranks,  there  went  gradations  in  the  amounts  paid 
in  composition  for  crimes,  according  to  the  rank  of  the 
injured.  And  how  completely  the  notion  of  justice  was 
determined  by  the  notion  of  rightly-existing  inequalities,  is 
shown  by  the  condemnation  of  sei'fs  who  escaped  into  the 
towns,  and  were  said  to  have  ''unjustly"  withdi-awn  them- 
selves from  the  control  of  their  lords. 

Thus,  as  might  be  expected,  we  find  that  while  the 
struggle  for  existence  between  societies  is  going  on 
actively,  recognition  of  the  primary  factor  in  justice  which 
is  common  to  life  at  large,  human  and  sub-human,  is  very 
imperfectly  qualified  by  recognition  of  the  secondary  factor. 
That  which  we  may  distinguish  as  the  brute  element  in  the 
conception  is  but  little  mitigated  by  the  human  element. 

§  24.  All  movements  are  rhythmical,  and,  among  others, 
social  movements,  with  their  accompanying  doctrines. 
After  that  conception  of  justice  in  which  the  idea  of 
inequality  unduly  predominates,  comes  a  conception  in 
which  the  idea  of  equality  unduly  predominates. 

A  recent  example  of  such  reactions  is  furnished  by  the 
ethical  theory  of  Bentham.     As  is  shoTsn  by  the  following 


THE    IDEA   OP    JUSTICE.  41 

extract  from  Mr.  Mill's  UtilUarianism  (p.  91),  the  idea  of 
inequality  here  entirely  disappears. 

The  Greatest-Happiness  Principle  is  a  mere  form  of  words  without  rational 
signification,  unless  one  person's  happiness,  supposed  equal  in  degree  (with 
the  proper  allowance  made  for  kind),  is  counted  for  exactly  as  much  as 
another's.  Those  conditions  being  supplied,  Bentham's  dictum,  "  everybody 
to  count  for  one,  nobody  for  more  than  one,"  might  be  written  under  the 
principle  of  utility  as  an  explanatory  commentary. 

Now  tliough.  Bentliam  ridicules  the  taking  of  justice  as 
our  guide,  saying  that  while  happiness  is  an  end  intelligible 
to  all,  justice  is  a  relatively  unintelligible  end,  yet  he  tacitly 
asserts  that  his  principle — '^everybody  to  count  for  one, 
nobody  for  more  than  one,"  is  just ;  since,  otherwise,  lie 
would  be  obliged  to  admit  tbat  it  is  unjust,  and  we  may  not 
suppose  he  would  do  so.  Hence  the  implication  of  his 
doctrine  is  that  justice  means  an  equal  apportionment  of 
the  benefits,  material  and  immaterial,  which  men's  activi- 
ties bring.  There  is  no  recognition  of  the  propriety  of 
inequalities  in  men's  shares  of  happiness,  consequent  on 
inequalities  in  their  faculties  or  characters. 

This  is  the  theory  which  Communism  would  reduce  to 
practice.  From  one  who  knows  him,  I  learn  that  Prince 
Krapotkin  blames  the  English  socialists  because  they  do 
not  propose  to  act  out  the  rule  popularly  worded  as  "  share 
and  share  alike."  In  a  recent  periodical,  M.  de  Laveleye 
summed  up  the  communistic  principle  as  being  "  that  the 
individual  works  for  the  profit  of  the  State,  to  which  he 
hands  over  the  produce  of  his  labour  for  equal  division 
among  all."  In  the  communistic  Utopia  described  in  Mr. 
Bellamy's  Looking  Baclavard,  it  is  held  that  each  "shall 
make  the  same  effort,"  and  that  if  by  the  same  effort,  bodily 
or  mental,  one  produces  twice  as  much  as  another,  he  is  not 
to  be  advantaged  by  the  difference.  The  intellectually  or 
physically  feeble  are  to  be  quite  as  well  off  as  others :  the 
assertion  being  that  the  existing  regime  is  one  of  '^robbing 
the  incapable  class  of  their  plain  right  in  leaving  them 
unprovided  for." 

The  principle  of  inequality  is  thus  denied  absolutely.     It 


42  JUSTICE. 

(is  assumed  to  "be  unjust  that  superiority  of  nature  shall 
1  bring  superiority  of  results,  or,  at  any  rate,  superiority  of 
; '  material  results ;  and  as  no  distinction  appears  to  be  made 
in  respect  either  of  physical  qualities  or  intellectual  qualities 
or  moral  qualities,  the  implication  is  not  only  that  strong  and 
weak  shall  fare  alike,  but  that  foolish  and  wise,  worthy  and 
nnworthy,  mean  and  noble,  shall  do  the  same.  For  if, 
according  to  this  conception  of  justice,  defects  of  nature, 
physical  or  intellectual,  ought  not  to  count,  neither  ought 
moral  defects,  since  they  are  all  primarily  inherited. 

And  here,  too,  we  have  a  deliberate  abolition  of  that 
cardinal  distinction  between  the  ethics  of  the  family  and 
the  ethics  of  the  State,  emphasized  at  the  outset :  an  aboli- 
tion which,  as  we  saw,  must  eventuate  in  decay  and  disap- 
pearance of  the  species  or  variety  in  which  it  takes  place. 

§  25.  After  contemplating  these  divergent  conceptions 
of  justice,  in  which  the  ideas  of  inequality  and  equality 
almost  or  quite  exclude  one  another,  we  are  now  prepired 
for  framing  a  true  conception  of  justice. 

In  other  fields  of  thought  it  has  fallen  to  my  lot  to  show 
that  the  right  view  is  obtained  by  co-ordinating  the 
antagonistic  wrong  views.  Thus,  the  association-theory  of 
intellect  is  harmonized  with  the  transcendental  theory  on 
perceiving  that  when,  to  the  effects  of  individual  experiences, 
are  added  the  inherited  effects  of  experiences  received  by  all 
ancestors,  the  two  views  become  one.  So,  too,  when  the 
moulding  of  feelings  into  harmony  with  requirements,  gener- 
ation after  generation,  is  recognized  as  causing  an  adapted 
moral  nature,  there  results  a  reconciliation  of  the  expediency- 
theory  of  morals  with  the  intuitional  theory.  And  here  we 
see  that  a  like  mutual  correction  occurs  with  this  more 
special  component  of  ethics  now  before  us. 

For  if  each  of  these  opposite  conceptions  of  justice  is 
accepted  as  true  in  part,  and  then  supplemented  by  the 
other,  there  results  that  conception  of  justice  which  arises 
on  contemplating  the  laws  of  life  as  carried  on  in  the  social 


THE    IDEA    OP   JUSTICE.  43 

state.  The  equality  concerns  tlie  mutually-limited  spheres 
of  action  which  must  be  maintained  if  associated  men  are 
to  co-operate  harmoniously.  The  inequality  concei^ns  the 
results  which  each  may  achieve  by  carrying  on  his  actions 
within  the  implied  limits.  No  incongruity  exists  when  the 
ideas  of  equality  and  inequality  are  applied  the  one  to  the 
bounds  and  the  other  to  the  benefits.  Contrariwise,  the  two 
may  be^  and  must  be,  simultaneously  asserted. 

Other  injunctions  which  ethics  has  to  utter  do  not  here 
concern  us.  There  are  the  self-imposed  requirements  and 
limitations  of  private  conduct,  forming  that  large  division 
of  ethics  treated  of  in  Part  III.;  and  there  are  the  demands 
and  restraints  included  under  Negative  Beneficence  and 
Positive  Beneficence,  to  be  hereafter  treated  of,  which  are 
at  once  self-imposed  and  in  a  measure  imposed  by  public 
opinion.  But  here  we  have  to  do  only  with  those  claims 
and  those  limits  which  have  to  be  maintained  as  conditions 
to  harmonious  co-operation,  and  which  alone  are  to  be 
enforced  by  society  in  its  corporate  capacity. 

§  26.  Any  considerable  acceptance  of  so  definite  an  idea 
of  justice  is  not  to  be  expected.  It  is  an  idea  appropriate 
to  an  ultimate  state,  and  can  be  but  partially  entertained 
during  transitional  states ;  for  the  prevailing  ideas  must, 
on  the  average,  be  congruous  with  existing  institutions 
and  activities. 

The  two  essentially-different  types  of  social  organization, 
militant  and  industrial,  based  respectively  on  status  and  on 
contract,  have,  as  we  have  above  seen,  feelings  and  beliefs 
severally  adjusted  to  them ;  -^nd  the  mixed  feelings  and 
beliefs  appropriate  to  intermediate  types,  have  continually 
to  change  according  to  the  ratio  between  the  one  and  the 
other.  As  I  have  elsewhere  shown,"^  during  the  thirty — or 
rather  forty — years'  peace,  and  consequent  weakening  of 
the  militant  organization,  the  idea  of  justice  became  clearer : 
*  PrinciyUs  of  Sociology,  §§  26G-7  ;  Political  Institutions,  §§  573-4  and  55<i, 


44  JUSTICE. 

coercive  regulations  were  relaxed  and  eacli  man  left  more 
free  to  make  the  best  of  himself.  But  since  tlien_,  the 
re-development  of  militancy  has  caused  reversal  of  these 
changes ;  and,  along  with  nominal  increases  of  freedom, 
actual  diminutions  of  freedom  have  resulted  from  multiplied 
restrictions  and  exactions.  The  spirit  of  regimentation 
proper  to  the  militant  type,  has  been  spreading  throughout 
the  administration  of  civil  life.  An  army  of  workers  with 
appointed  tasks  and  apportioned  shares  of  products,  which 
socialism,  knowingly  or  unknowingly,  aims  at,  shows  in 
civil  life  the  same  characters  as  an  army  of  soldiers  with 
prescribed  duties  and  fixed  rations  shows  in  military 
life ;  and  every  act  of  parliament  which  takes  money  from 
the  individual  for  public  purposes  and  gives  him  public 
benefits,  tends  to  assimilate  the  two.  Germany  best  shows 
this  kinship.  There,  where  militancy  is  most  pronounced, 
and  where  the  regulation  of  citizens  is  most  elaborate, 
socialism  is  most  highly  developed;  and  from  the  head  of 
the  German  military  system  has  now  come  the  proposal 
of  regimental  regulations  for  the  working  classes  through- 
out Europe. 

Sympathy  which,  a  generation  ago,  was  taking  the  shape 
of  justice,  is  relapsing  into  the  shape  of  generosity ;  and 
the  generosity  is  exercised  by  inflicting  injustice.  Daily 
legislation  betrays  little  anxiety  that  each  shall  have  that 
which  belongs  to  him,  but  great  anxiety  that  he  shall  have 
that  which  belongs  to  somebody  else.  For  while  no  energy 
is  expended  in  so  reforming  our  judicial  administration 
that  everyone  may  obtain  and  enjoy  all  he  has  earned, 
great  energy  is  shown  in  providing  for  him  and  others 
benefits  which  they  have  not  earned.  Along  with  that 
miserable  laissez-faire  which  calmly  looks  on  while  men 
ruin  themselves  in  trying  to  enforce  by  law  their  equitable 
claims,  there  goes  activity  in  supplying  them,  at  other 
men's  cost,  with  gratis  novel-reading  1 


CHAPTER  YI. 

THE  FORMULA  OF  JUSTICE. 

§  27.  After  tracing-  up  tlie  evolution  of  justice  in  ita 
simple  form,  considered  objectively  as  a  condition  to  the 
maintenance  of  life;  after  seeing  how  justice  as  so  con- 
sidered becomes  qualified  by  a  new  factor  when  the  life  i3 
gregarious,  more  especially  in  the  human  race ;  and  after 
observing  the  corresponding  subjective  products— the  senti- 
ment of  justice  and  the  idea  of  justice — arising  from  converse 
with  this  condition ;  we  are  now  prepared  for  giving  to  the 
conclusion  reached  a  definite  form.  We  have  simply  to 
find  a  precise  expression  for  the  compromise  described  in 
the  last  chapter. 

The   formula   has  to   unite   a  positive    element  with   a 
negative  element.     It  must  be  positive  in  so  far  as  it  asserts 
for  each  that,  since  he  is  to  receive  and  suffer  the  good  and 
evil  results  of  his  actions,  he  must  be  allowed  to  act.     And 
it   must   be  negative   in    so  far  as,    by  asserting   this    of  , 
everyone,  it  implies  that  each  can  be  allowed  to  act  only  • 
under  the  restraint  imposed  by  the    presence   of   others  ! 
having  like  claims  to  act.     Evidently  the  positive  element  . 
is  that  which  expresses  a  pre-rcquisite  to  life  in  general,  : 
and  the  negative  element  is  that  which  qualifies  this  pre-  / 
requisite  in  the  way  required  when,  instead  of   one    life 
carried  on  alone,  there  are  many -lives  carried  on  together. 

Hence,  that  which  we  have  to  express  in  a  precise  way, 


46  JUSTICE. 

is  tlie  liberty  of  eacli  limited  only  by  tlie  like  liberties  of 
all.  This  we  do  by  saying  : — Every  man  is  free  to  do  that 
which  he  wills_,  provided  he  infi'inges  not  the  equal  freedom 
of  any  other  man. 

§  28.  A  possible  misapprehension  must  be  guarded 
against.  There  are  acts  of  aggression  which  the  formula 
is  presumably  intended  to  exclude,  which  appai-ently  it  does 
not  exclude.  It  may  be  said  that  if  A  strikes  B,  then,  so 
long  as  B  is  not  debarred  from  striking  A  in  return,  no 
greater  freedom  is  claimed  by  the  one  than  by  the  other;  or 
it  may  be  said  that  if  A  has  trespassed  on  B's  property,  the 
requirement  of  the  formula  has  not  been  broken  so  long  as 
B  can  trespass  on  A's  property.  Such  interpretations, 
however,  mistake  the  essential  meaning  of  the  formula, 
which  we  at  once  see  if  we  refer  back  to  its  origin. 

For  the  truth  to  be  expressed  is  that  each  in  carrying  on 
the  actions  which  constitute  his  life  for  the  time  being,  and 
conduce  to  the  subsequent  maintenance  of  his  life,  shall  not 
be  impeded  further  than  by  the  carrying  on  of  those  kindred 
actions  which  maintain  the  lives  of  others.  It  does  not 
countenance  a  superfluous  interference  with  another's  life, 
committed  on  the  ground  that  an  equal  interference  may 
balance  it.  Such  a  rendering  of  the  formula  is  one  which 
implies  greater  deductions  from  the  lives  of  each  and  all 
than  the  associated  state  necessarily  entails;  and  this  is 
obviously  a  perversion  of  its  meaning. 

If  we  bear  in  mind  that  though  not  the  immediate  end, 
the  greatest  sum  of  happiness  is  the  remote  end,  we  see 
clearly  that  the  sphere  within  which  each  may  pursue  happi- 
ness has  a  limit,  on  the  other  side  of  which  lie  the  similarly 
limited  spheres  of  action  of  his  neighbours ;  and  that  he 
may  not  intrude  on  his  neighbour's  spheres  on  condition 
that  they  may  intrude  on  his.  Instead  of  justifying '; 
aggression  and  counter-aggression,   the   intention   of  tb,«  1 


THE    FORMULA    OF   JUSTICE.  47 

\  formula  is  to  fix  a  bound  wLicli  may  not  be  exceeded  on 
'eitlier  side. 

§  29.  And  liere^  on  tliis  misappreliension  and  tbis  recti- 
fication, an  instructive  comment  is  yielded  by  the  facts  of 
social  progress.  For  tbey  show  that,  in  so  far  as  justice  is 
concerned_,  there  has  been  an  advance  from  the  incorrect 
interpretation  to  the  correct  interpretation. 

In  early  stages  we  see  habitual  aggression  and  counter- 
aggression  :  now  between  societies  and  now  between  indi- 
viduals. Neighbouring  tribes  fight  about  the  limits  to 
their  territories,  trespassing  first  on  one  side  and  then  on 
'the  other;  and  further  fights  are  entailed  by  the  require- 
ment that  mortality  suifered  shall  be  followed  by  mortality 
inflicted.  In  such  acts  of  revenge  and  re-revenge  there  is 
displayed  a  vague  recognition  of  equality  of  claims.  This 
tends  towards  recognition  of  definite  limits,  alike  in  respect 
of  territory  and  in  respect  of  bloodshed ;  so  that  in  some 
cases  a  balance  is  maintained  between  the  numbers  of 
deaths  on  either  side. 

Along  with  this  growing  conception  of  inter-tribal  justice 
goes  a  growing  conception  of  justice  among  members  of 
each  tribe.  At  first  it  is  the  fear  of  retaliation  which 
causes  such  respect  for  one  another's  persons  and  posses- 
sions as  exists.  The  idea  of  justice  is  that  of  a  balancing 
of  injuries — '^  an  eye  for  an  eye  and  a  tooth  for  a  tooth.''* 
This  remains  the  idea  during  early  stages  of  civilization. 
After  justice,  as  so  conceived,  ceases  to  be  enforced  by 
the  aggrieved  person  himself,  it  is  this  wliich  he  asks  to 
have  enforced  by  the  constituted  authority.  The  cry  to 
the  ruler  for  justice  is  the  cry  for  punishment — for  the 
infliction  of  an  injury  at  least  as  groat  as  the  injury 
suffered,  or,  otherwise,  for  a  compensation  equivalent  to 
the  loss.  Thus  the  equality  of  claims  is  but  tacitly  asserted 
in  the  demand  to  have  rectified,  as  far  as  may  be,  the 
breaches  of  equality. 


\ 

48  JUSTICE. 

How  tliere  tends  gradually  to  emerge  from  tliis  crude 
conception  of  justice  the  finished  conception  of  justice^  it 
seems  scarcely  needful  to  explain.  The  true  idea  is 
generated  by  experience  of  the  evils  which  accompany 
the  false  idea.  Naturally^  the  perception  of  the  right 
restraints  on  conduct  becomes  clearer  as  respect  for  these 
restraints  is  forced  on  men,  and  so  rendered  more  habitual 
and  more  general.  Men's  incursions  into  one  another's 
spheres  constitute  a  kind  of  oscillation,  which,  violent  at 
the  outset,  becomes  gradually  less  with  the  progress 
towards  a  relatively  peaceful  state  of  society.  As  the 
oscillations  decrease  there  is  an  approach  to  equilibrium ; 
and  along  with  this  approach  to  equilibrium  comes  approach 
to  a  definite  theory  of  equilibrium. 

Thus  that  primitive  idea  of  justice  in  which  aggression 
is  to  be  balanced  by  counter-aggression,  fades  from 
thought  as  fast  as  it  disappears  from  practice ;  and  there 
comes  the  idea  of  justice  here  formulated,  in  which  are 
recognized  such  limitations  of  conduct  as  exclude  aggres- 
sions altogether. 

Note.  For  the  views  of  Kant  concerning  the  ultimate 
principle  of  Eight,  see  Appendix  A. 


CHAPTER  VII. 

THE  AUTHORITY  OF  THIS  FORMULA. 

§  30.  Before  going  further  we  must  contemplate  this 
formula  under  all  its  aspects,  for  the  purpose  of  seeing 
what  maj  be  said  against  it  as  well  as  what  may  be  said  in 
its  favour. 

By  those  who  have  been  brought  up  in  the  reigning 
school  of  politics  and  morals,  nothing  less  than  scorn  is 
shown  for  every  doctrine  which  implies  restraint  on  the 
doings  of  immediate  expediency  or  what  appears  to  be 
such.  Along  with  avowed  contempt  for  "  abstract  prin- 
ciples" and  generalizations,  there  goes  unlimited  faith  in 
a  motley  assemblage  of  nominees  of  caucuses,  ruled  by 
ignorant  and  fanatical  wire-pullers ;  and  it  is  thought 
intolerable  that  its  judgments  should  be  in  any  way  sub- 
ordinated by  deductions  from  ethical  truths. 

Strangely  enough  we  find  in  the  world  of  science,  too, 
this  approval  of  political  empiricism  and  disbelief  in  any 
other  guidance.  Though  it  is  a  trait  of  the  scientific  mind 
to  recognize  causation  as  universal,  and  though  this 
involves  a  tacit  admission  that  causation  holds  throughout 
the  actions  of  incorporated  men,  this  admission  remains 
a  dead  letter.  Notwithstanding  the  obvious  fact  that  if 
there  is  no  causation  in  public  affairs  one  course  must  bo 
as  good  as  another ;  and  notwithstanding  the  obvious  fact 


50  JUSTICE. 

tliat  to  repudiate  tliis  implication  is  to  say  tliat  some  cause 
determines  the  goodness  or  badness  of  this  or  that  policy; 
no  effort  is  made  to  identify  the  causation.  Contrariwise, 
there  is  ridicule  of  those  who  attempt  to  find  a  definite 
expression  for  the  fundamehtal  principle  of  harmonious 
social  order.  The  differences  among  their  views  are 
emphasized,  rather  than  the  traits  which  their  views  have 
in  common ;  just  as,  loj  adherents  of  the  current  ci-eed, 
the  differences  among  men  of  science  are  emphasized, 
instead  of  their  essential  agreements. 

Manifestly,  then,  before  proceeding  we  must  deal  with 
the  more  important  objections  urged  against  the  formula 
reached  in  the  last  chapter. 

/'  §  31.  Every  kind  of  evolution  is  from  the  indefinite  to 
Ithe  definite;  and  one  of  the  implications  is  that  a  distinct 
'conception  of  justice  can  have  arisen  but  gradually.  Already 
'  the  advance  towards  a  practical  recognition  of  justice  has 
been  shown  to  imply  a  corresponding  advance  towards 
theoretical  recognition  of  it.  It  will  be  desirable  here  to 
observe  more  closely  this  growth  of  the  consciousness  that 
the  activities  carried  on  for  self-conservation  by  each,  are 
to  be  restrained  by  the  like  activities  of  all. 

And  first  let  us  note  a  fact  which  might  have  been  fitly 
included  at  the  close  of  the  last  chapter — the  fact  that  where 
men  are  subject  to  the  discipline  of  a  peaceful  social  life 
only,  uninterfered  with  by  the  discipline  which  inter-social 
antagonisms  entail,  they  quickly  develop  this  consciousness. 
Entirely  pacific  tribes,  uncivilized  in  the  common  sense  of 
the  word  as  some  of  them  are,  show  a  perception  of  that 
Avhich  constitutes  equity,  far  clearer  than  the  perception 
displayed  by  civilized  peoples,  among  whom  the  habits  of 
industrial  life  are  qualified  more  or  less  largely  by  the 
habits  of  militant  life.  The  amiable  and  conscientious 
licpcha,  who,  while  he  does  not  desire  to  be  killed  himself, 
refuses  absolutely  to  assist  in  killing  others ;  the  Hos 
full  of  social  virtues,  who  may  be  driven  almost  to  suicide 


THE    AUTUOraTT    OP   THIS    FOEMULA.  51 

by  tlie  suspicion  tliat  lie  has  committed  a  ttef t ;  the  lowly 
Wood-Veddah,  who  can  scarcely  conceive  it  possible  that 
one  man  should  willingly  hurt  another,  or  take  that  which 
does  not  belong  to  him ; — these  and  sundry  others  show  that 
though  there  is  not  intelligence  enough  to  frame  a  con- 
ception of  the  fundamental  social  law,  there  is  yet  a  strong 
sentiment  responding  to  this  law,  and  an  understanding  of 
its  special  applications.  Where  the  conditions  are  such  as 
do  not  require  that  respect  for  the  claims  of  fellow-tribes- 
men shall  go  along  with  frequent  trampliugs  on  the  claims 
of  men  outside  the  tribe,  there  grow  up  simultaneously  in 
each  individual  a  regard  for  his  own  claims  and  a  regard  for 
the  claims  of  other  individuals. 

It  is  only  where  the  ethics  of  amity  are  entangled  with  the 
ethics  of  enmity,  that  thoughts  about  conduct  are  confused 
by  the  necessities  of  compromise.     The  habit  of  aggression 
outside  the  society  is  at  variance  with  the  habit  of  non- 
aggression  inside  the  society,  and  at  variance  with  recogni- 
tion of  the  law  implied  by  non-aggression.     A  people  which 
gives  to  its   soldiers  the  euphemistic  title  "  defenders  of 
their  country,"  and  then  exclusively  uses  them  as  invaders 
of   other    countries — a   people    which   so   far    appreciates 
the  value  of  life  that  within  its  bounds  it  forbids  prize- 
fights, but  beyond  its  bounds  frequently  takes  scores  of 
lives  to  avenge  one  life — a  people  which  at  home  cannot  -, 
tolerate  the  thought  that  inferiority  shall  bear  the  self-   ' 
inflicted  evils  of  inferiority,  but  abroad  has  no  compunction 
in  using  bullet  and  bayonet  to  whatever  extent  is  needful 
for  conquest  of  the  uncivilized,  arguing  that  the  inferior    ! 
should  be  replaced  by  the  superior ; — such  a  people  must    j 
think  crookedly  about  the  ultimate  principles  of  right  and    > 
wrong.     Now  enunciating  the  code   appropriate  to  its  in-    I 
ternal  policy  and  now  the  code  appropriate  to  its  external 
policy,  it  cannot  entertain  a  consistent  set  of  ethical  ideas.    ' 
All  through  the  course  of  that  conflict  of  races  which,  by 
peopling  the   Earth  with  the  strongest,  has  been  a  preli- 


52  JUSTICE. 

minary  to  high  civilization,  there  have  gone  on  these  in- 
congruous activities  necessitating  incongruous  sets  of  be- 
liefs, and  making  a  congruous  set  of  beliefs  inadmissible, 
j  Nevertheless,  -where  the  conditions  have  allowed,  the 
(3onception  of  justice  has  slowly  evolved  to  some  extent,  and 
found  for  itself  approximately  true  expressions.  In  the 
Hebrew  commandments  we  see  interdicts  which,  while 
they  do  not  overtly  recognize  the  positive  element  in  justice, 
affirm  in  detail  its  negative  element — specify  limits  to 
actions,  and,  by  prescribing  these  limits  for  all  Hebrews, 
tacitly  assert  that  life,  property,  good  name,  &c.,  must  be 
respected  in  one  as  in  another.  In  a  form  which  makes  no 
distinction  between  generosity  and  justice,  the  Christian 
maxim — ''Do  unto  others  as  ye  would  that  others  should 
jdo  unto  you,^^  vaguely  implies  the  equality  of  men's  claims 
— implies  it,  indeed,  in  too  sweeping  a  manner,  since  it 
recognizes  no  reason  for  inequality  in  the  shares  of  good 
respectively  appropriate  to  men  :  there  is  in  it  no  direct 
recognition  of  any  claim  which  each  has  to  the  results  of 
his  own  activities,  but  only  an  implied  recognition  of  such 
claims  in  the  persons  of  others,  and  by  implication  a  pre- 
scribing of  limits.  Taking  no  note  of  intermediate  forms 
of  the  conception,  we  may  instance  among  modern  forms 
the  one  which  it  took  in  the  mind  of  Kant.  His  rule — "  Act 
only  on  that  maxim  whereby  thou  canst  at  the  same  time  will 
that  it  should  become  a  universal  law,"  is,  indeed,  an  allo- 
tropic  form  of  the  Christian  rule.  The  suggestion  that  every 
other  man  must  be  imagined  to  act  after  a  manner  similar 
to  the  manner  proposed,  joined  with  the  tacit  implication 
that  if  suffering  would  be  caused,  the  act  should  not  be 
performed  (Kant  is  classed  as  an  anti-utilitarian !),  indirectly 
assumes  that  the  welfares  of  other  men  are  to  be  considered 
as  severally  of  like  values  with  the  welfare  of  the  actor — an 
assumption  which,  while  it  covers  the  requirements  of 
Justice,  covers  much  more. 

But  now  leaving  these  indications  of  the  beliefs  of  those 


THE    AUTHOKITY    OF   THIS    FORMULA.  53 

wlio  have  approached  the  question  from  the  religious  side 
and  from  the  ethical  side,  let  us  consider  the  beliefs  of 
those  who  have  approached  it  from  the  legal  side. 

§  32.  Of  course,  when  jurists  set  forth  first  pi'inciples, 
or  appeal  to  them,  they  have  ia  mind  the  bases  of  justice, 
whether  they  use  the  word  justice  or  not ;  since  systems  of 
justice,  considered  in  general  or  in  detail,  form  the  sub- 
ject matters  of  their  works.  This  premised,  let  us  observe 
the  doctrines  from  time  to  time  enunciated. 

Sir  Henry  Maine,  speaking  of  certain  dangers  which 
threatened  the  development  of  Roman  law,  says  : — 

"  But  at  any  rate  they  had  adequate  protection  in  their  theory  of  Natural 
Law.  For  the  Natural  Law  of  the  jurisconsults  was  distinctly  conceived  by 
them  as  a  system  which  ought  gradually  to  absorb  civil  laws,  without  super- 

eeding  them  so  long  as  they  remained  unrepealed The  value  and 

Berviceableness  of  the  conception  arose  from  its  keeping  before  the  mental 
vision  a  type  of  perfect  law,  and  from  its  inspiring  the  hope  cf  an  indefinite 
appro:!;imation  to  it."  (Ancient  La^v,  pp.  76-7,  3rd  edition.) 
In  the  spirit  of  these  Roman  lawyers,  one  of  our  early 
judges  of  high  repute.  Chief  Justice  Hobart,  uttered  the 
emphatic  assertion — 

"  Even  an  Act  of  Parliament  made  against  natural  equity,  as  to  make  a 
man  Judge  in  his  own  case,  is  void  in  itself,  ior  jura  natures  sunt  immutahilia, 
and  they  are  leges  legum."  (Hobart's  Reports,  Lond.  1641,  p.  120.) 
So  said  a  great  authority  of  later  date.  Dominated  by 
a  creed  which  taught  that  natural  things  are  supernaturally 
ordained,  Blackstone  wrote  : — 

"•This  law  of  nature  being  coeval  with  mankind,  and  dictated  by  God 
himself,  is  of  course  superior  in  obligation  to  any  other  ....  no  human 
laws  are  of  any  validity  if  contrary  to  this  ;  and  such  of  them  as  are  valid 
derive  all  their  force  and  all  their  authority,  mediately  or  immediately,  from 
this  original."  (Chittifs  Blackstone,  Vol.  I.,  pp.  37-8.) 
Of  like  character  is  another  verdict,  given  by  one  who 
treated  of  legislation  from  a  philosophical  point  of  view. 
Sir  James  Mackintosh  defines  a  law  of  nature  as  being — 
"  a  supreme,  invariable,  and  uncontrollable  rule  of  conduct  to  all  men  .  .  . 
It  is  '  the  law  of  nature,'  because  its  general  precepts  are  essentially  adapted 
to  promote  the  happiness  of  man  .  .  .  because  it  is  discoverable  by  natural 
reason,  and  suitable  to  our  natural  constitution  ;  and  because  its  fitness  and 


54  JUSTICE. 

•wisdom  are  founded  on  the  general  nature  of  human  beings,  and  not  on  any 
of  those  temporary  and  accidental  situations  in  -which  they  may  be  placed." 
(Mackintosh's  Miscellaneous  Works,  Vol.  I.,  p.  346.) 

Even  the  despotically-minded  Austin,  idolized  by  tiie 
lawyers  of  our  days  as  having  elaborated  a  theory  of  un- 
limited legislative  authority,  is  obliged  to  confess  that  the 
ultimate  justification  for  tlie  governmental  absolutism  he 
defends,  is  ethical.  Behind  the  authority,  monarchical, 
oligarchic,  or  parlimentaiy,  which  enacts  laws  represented 
as  supreme,  there  is  at  length  recognized  an  authority  to 
which  it  is  subordinate — an  authority,  therefore,  which  is 
not  derived  from  human  law,  but  is  above  human  law, — 
an  authority  which  is  by  implication  ascribed,  if  not  to  divine 
enactment,  then  to  the  nature  of  things. 

Paying  some  respect  to  these  dicta  (to  which  I  may  add 
that  of  the  German  jurists  with  their  Naturrecht)  does  not 
imply  unreasoning  credulity.  We  may  reasonably  suspect 
that,  however  much  they  may  be  in  form  open  to  criticism, 
they  are  true  in  essence. 

§  33.  "  But  these  are  a  imori  beliefs,'^  will  be  the 
contemptuous  comment  of  many.  "  They  all  exemplify 
that  vicious  mode  of  philosophizing  which  consists  in  evol- 
ving truths  out  of  the  depths  of  one's  own  consciousness," 
will  be  said  by  those  who  hold  that  general  truths  can  be 
reached  only  by  conscious  induction.  Curiously  illustrating 
the  law  that  all  movement  is  rhythmical,  the  absolute  faith 
of  past  times  in  a  'priori  reasoning,  has  given  place  to 
absolute  disbelief ;  and  now  nothing  is  to  be  accepted 
unless  it  is  reached  a  posteriori.  Aaj  one  who  contem- 
plates the  average  sweep  of  human  progress,  *may  feel 
tolerably  certain  that  this  violent  reaction  will  be  followed 
by  a  re-reaction;  and  he  may  infer  that  both  of  these  anti- 
thetical modes  of  reasoning,  while  they  have  their  abuses, 
have  also  their  uses. 
Whence  come  a  priori  beliefs — how  happen  they  to  arise? 


THE    AUTHORITY    OP    THIS    FORMULA.  55 

I  do  not  of  course  refer  to  beliefs  peculiar  to  particular 
persons^  wliicli  may  be  results  of  intellectual  perversions. 
I  refer  to  those  wbich  are  general,  if  not  universal — 
beliefs  wliicli  all,  or  nearly  all,  do  not  profess  to  base  on 
e^ddence,  and  yet  wliicli  they  bold  to  be  certain.  The  origin 
of  such  beliefs  is  either  natural  or  supernatural.  If  super- 
natural, then  unless,  by  believers  in  a  devil,  they  are  regarded 
as  diabolically  insinuated  into  men  to  mislead  them,  they 
must  be  regarded  as  divinely  implanted  for  purposes  of 
guidance,  and  therefore  to  be  trusted.  If,  not  satisfied  with 
an  alleged  supernatural  derivation,  we  ask  for  a  natural 
derivation,  then  our  conclusion  must  be  that  these  modes 
of  thought  are  determined  by  converse  with  the  relations 
of  things.  One  who  adheres  to  the  current  creed  with  its 
good  and  evil  agents,  is  not  without  a  feasible  reason  for 
denying  the  value  of  a  'priori  beliefs  ;  but  one  who  accepts 
the  doctrine  of  Evolution  is  obliged,  if  he  is  consistent,  to 
admit  tliat  a 'priori  beliefs  entertained  by  men  at  large,  must 
have  arisen,  if  not  from  the  experiences  of  each  individual, 
then  from  the  experiences  of  the  race.  AVhen,  to  take  a 
geometrical  illustration,  it  is  affirmed  that  two  straight 
lines  cannot  inclose  a  space ;  and  when  it  is  admitted,  as  it 
must  be,  that  this  truth  cannot  be  established  a  posteriori, 
since  not  in  one  case,  still  less  in  many  cases,  can  lines  be 
pursued  out  into  infinity  for  the  purpose  of  observing  what 
happens  to  the  space  between  them;  then  the  inevitable  ad- 
mission must  be  that  men's  experiences  of  straight  lines  (or 
rather,  having  regard  to  primitive  times,  let  us  say  objects 
approximately  straight)  have  been  such  as  to  make  impossible 
the  conception  of  space  as  inclosed  by  two  straight  lines, — 
have  been  such  as  to  make  it  imperative  to  think  of  the  lines 
as  bending  before  the  space  can  be  inclosed.  Unques- 
tionably, on  the  Evolution-hypothesis,  this  fixed  intuition 
must  have  been  established  by  that  intercourse  with  things 
which,  througliout  an  enormous  past,  has,  directly  or  in- 
directly,   determined    the    organization    of    the    nervous 


56  JUSTICE. 

system  and  certain  resulting  necessities  of  thought ;  and  the 
a  'priori  beliefs  determined  by  these  necessities  differ  from 
a  posteriori  beliefs  simply  in  this,  that  they  are  products 
of  the  experiences  of  innumerable  successive  individuals 
instead  of  the  experiences  of  a  single  individual. 

If,  then,  from  the  Evolution  point  of  view,  this  is  un- 
doubtedly so  with  those  simple  cognitions  which  concern 
Space,  Time,  and  Number,  must  we  not  infer  that  it  is  so,  in 
large  measure,  with  those  more  complex  cognitions  which 
concern  human  relations  ?  I  say  ''in  large  measure; "  partly 
because  the  experiences  are  in  this  case  far  more  involved 
and  superficially  varied,  and  cannot  have  produced  any- 
thing like  such  definite  effects  on  the  nervous  organization ; 
and  partly  because,  instead  of  reaching  back  through  an 
immeasurable  series  of  ancestral  beings,  they  reach  back 
through  a  part  of  the  human  race  only.  For  these  ex- 
periences, hardly  traceable  during  early  stages,  become 
marked  and  coherent  only  where  amicable  social  co-opera- 
tion forms  a  considerable  factor  in  social  life.  Hence 
these  cognitions  must  be  comparatively  indefinite. 

The  qualification  to  be  therefore  made  is  that  these  ethical 
intuitions,  far  more  than  the  mathematical  intuitions,  have 
to  be  subjected  to  methodic  criticism.  Even  the  judgments 
of  immediate  perception  respecting  straight  lines,  curves, 
angles,  and  so  forth,  have  to  be  tested  in  ways  devised  by 
conscious  reason :  one  line  is  perceived  to  be  perpendicular 
to  another  with  approximate  truth,  but  complete  perpen- 
dicularity can  be  ascertained  only  by  the  aid  of  a  geome- 
trical theorem.  Evidently,  then,  the  relatively  vague  internal 
perceptions  which  men  have  of  right  human  relations,  are 
not  to  be  accepted  without  deliberate  comparisons,  rigorous 
cross-examinations,  and  careful  testings  of  all  kinds  :  a 
conclusion  made  obvious  by  the  numerous  minor  disagree- 
ments which  accompany  the  major  agreement. 

Thus  even  had  the  foregoing  dicta,  and  along  with  them 
the  law  of  equal  freedom  as  recently  formulated,  no  other 


THE    AUTHORITY    OP   THIS    FORMULA,  57 

than  a  priori  derivations  (and  this  is  far  fi-om  being  the  fact) 
it  would  still  be  rational  to  regard  them  as  adumbrations 
of  a  truth,  if  not  literally  true. 

§  84.  But  now  mark  that  those  who,  in  this  case,  urge 
against  a  system  of  thought  the  reproach  that  it  sets  out 
with  an  a  'priori  intuition,  may  have  the  reproach  hurled 
back  upon  them  with  more  than  equal  force. 
i-  Alike  in  philosophy,  in  politics,  and  in  science,  we  may 
see  that  the  inductive  school  has  been  carried  by  its  violent 
reaction  against  the  deductive  school  to  the  extreme  of 
assuming  that  conscious  induction  sujfices  for  all  purposes, 
and  that  there  is  no  need  to  take  anything  for  granted. 
Though  giving  proof  of  an  alleged  truth  consists  in 
showing  that  it  is  included  in  some  wider  established  truth, 
and  though,  if  this  wider  truth  be  questioned,  the  process 
is  repeated  by  demonstrating  that  a  still  wider  truth  in- 
cludes it ;  yet  it  is  tacitly  assumed  that  this  process  may 
go  on  for  ever  without  reaching-  a  widest  truth,  which 
cannot  be  included  in  any  other,  and  therefore  cannot 
be  proved.  And  the  result  of  making  this  unthinking 
assumption  is  the  building  up  of  theories  which,  if  they 
have  not  a  priori  beliefs  as  their  bases,  have  no  bases  at 
all.  This  we  shall  find  to  be  the  case  with  the  utilitarian 
systems  of  ethics  and  politics.* 

For  what  is  the  ultimate  meaning  of  expediency  ?  "When 
it  is  proposed  to  guide  ourselves  empirically,  towards  what 

*  There  are  some  who  not  only  decline  to  admit  any  truths  as  necessary, 
but  deny  necessity  itself ;  apparently  without  consciousness  of  the  fact  that 
since,  in  reasoning,  every  step  from  premises  to  conclusion  has  no  other 
warrant  than  perception  of  the  necessity  of  dependence,  to  deny  necessity 
is  to  deny  the  validity  of  every  argument,  including  that  by  which  it  is 
proposed  to  prove  the  absence  of  necessity !  I  recently  read  a  comment 
on  the  strange  resurrection  of  a  doctrine  said  to  have  been  long  ago  killed. 
Doubtless  remarkable  enough,  if  true.  I  know  only  one  thing  more 
remarkable,  and  that  is  the  way  in  which  a  system  of  thought  may  be  seen 
going  about  in  high  spirits  after  having  committed  suicide  1 


58  JUSTICE. 

are  we  to  guide  ourselves  ?  If  our  course  must  always  be 
determined  by  tbe  merits  of  the  case,  by  what  are  tbe  merits 
to  be  judged  ?  "  By  couduciveness  to  tbe  welfare  of  society, 
or  the  good  of  the  community/^  will  be  the  auswer.  It  will 
not  be  replied  that  the  merit  to  be  estimated  means  increase 
of  misery ;  it  will  not  be  replied  that  it  means  increase  of  a 
state  of  indifference,  sensational  and  emotional;  and  it  must 
therefore  be  replied  that  it  means  increase  of  happiness. 
By  implication,  if  not  avowedly,  greatest  happiness  is  the 
thing  to  be  achieved  by  public  action,  or  private  action,  or 
both.  But  now  whence  comes  this  postulate  ?  Is  it  an 
inductive  truth  ?  Then  where  and  by  whom  has  the  induc- 
tion been  drawn  ?  Is  it  a  truth  of  experience  derived  from 
careful  observations  ?  Then  what  are  the  observations,  and 
when  was  there  generalized  that  vast  mass  of  them  on  which 
all  politics  and  morals  should  be  built  ?  Not  only  are  there 
no  such  experiences,  no  such  observations,  no  such  induc- 
tion, but  it  is  impossible  that  any  should  be  assigned.  Even 
were  the  intuition  universal,  which  it  is  not  (for  it  has  been 
denied  by  ascetics  in  all  ages  and  places,  and  is  demurred 
to  by  an  existing  school  of  moralists),  it  would  still  have 
no  better  warrant  than  that  of  being  an  immediate  dictum 
of  consciousness. 

More  than  this  is  true.  There  is  involved  a  further  belief 
no  less  a  priori.  Already  I  have  referred  to  Bentham^s 
rule — "Everybody  to  count  for  one,  nobody  for  more  than 
one,"  joined  with  Mr.  Mill's  comment  that  the  greatest- 
happiness  principle  is  meaningless  unless  "  one  person's 
happiness  ...  is  counted  for  exactly  as  much  as  another's." 
Hence  tbe  Benthamite  theory  of  morals  and  politics  posits 
this  as  a  fundamental,  self-evident  truth.  And  this  tacit 
assumption  that  one  man's  claim  to  happiness  is  as  good  as 
another's,  has  been  recently  put  into  more  concrete  shape 
by  Mr.  Bellamy,  who  says  : — 

*'  The  woiid,  and  everything  that  is  in  it,  will  ere  long  be  recognized  as 


THE  AUTHORITY  OF  THIS  FORMULA.  59 

the  common  property  of  all,  and  undertaken  and  administered  for  the  equal 
benefit  of  all." 

That  is  to  say^  wlietlier  formulated  by  Beutliam  himself,  or 
by  Mill  as  his  expositor,  or  by  a  communistic  disciple,  the 
assumption  is  that  all  men  have  equal  rights  to  happiness. 
For  this  assumption  no  warrant  is  given,  or  can  be  giveu, 
other  than  alleged  intuitive  perception.  It  is  an  a  priori 
cognition. 

"  But  it  is  not  a  cognition  properly  so-called,'^  will 
probably  be  asserted  by  those  who  wish  to  repudiate  the 
communistic  implication,  at  the  same  time  that  they  wish  to 
repudiate  the  a  priori  reasoning.  ''It  is  merely  the  product 
of  perverted  fancy.  Happiness  itself  cannot  be  divided  out 
either  equally  or  unequally,  and  the  greatest  happiness  is 
not  to  be  obtained  by  equal  division  of  the  means  to  happi- 
ness, or  the  benefits,  as  they  are  above  called.  It  is  to  be 
obtained  rather  by  giving  a  larger  share  of  means  to  those 
who  are  most  capable  of  happiness.^'  Eaising  no  question 
about  the  practicability  of  such  an  adjustment,  let  us  simply 
ask  the  warrant  for  this  assertion.  Is  it  an  inductive 
warrant  ?  Has  anyone  made  a  number  of  comparisons 
between  societies  in  which  the  one  method  of  apportioning 
happiness  has  been  pursued,  and  societies  in  which  the 
other  has  been  pursued  ?  Hardly  so,  considering  that 
neither  the  one  method  nor  the  other  has  been  pursued  in 
any  society.  This  alternative  assumption  has  no  more  facts 
to  stand  upon  than  the  assumption  repudiated.  If  it  does 
not  claim  for  itself  an  a  priori  warrant,  then  it  has  no 
warrant. 

See  then  the  predicament.  While  reprobating  assump- 
tions said  to  be  warranted  only  by  direct  intuition,  this 
empirical  system  makes  more  such  assumptions  than  the 
system  to  which  it  is  opposed !  One  of  them  is  implied  in 
the  assertion  that  happiness  should  be  the  end  sought,  and 
another  of  them  is  implied  in  either  of  the  two  assertions 
that  men  have  equal  rights  to  happiness  or  tliat  they  have 


60  JUSTICE. 

not  equal  riglits  to  happiness.  Mark^  too,  tliat  no  one  of 
these  intuitions  is  justified  by  so  wide  a  consensus  as  the 
intuition  rejected  as  untrustworthy.  Sir  Henry  Maine 
remarks  that — 

"  The  happiness  of  mankind  is,  no  doubt,  sometimes  assigned,  both  in  the 
popular  and  in  the  legal  literature  of  the  Romans,  as  the  proper  object  of 
remedial  legislation,  but  it  is  very  remarkable  how  few  and  faint  are  the 
testimonies  to  this  principle  compared  with  the  tributes  which  are  constantly- 
offered  to  the  overshadowing  claims  of  the  Law  of  Nature."  {Ancient  Laio, 
p.  79,  3rd  edit.) 

And  it  is  scarcely  needful  to  say  that  since  Roman  times, 
there  has  continued  to  be  this  contrast  between  the  narrow 
recognition  of  happiness  as  an  end,  and  the  wide  recog- 
nition of  natural  equity  as  an  end. 

§  35.  But  now  let  it  be  remembered  that  this  principle 
of  natural  equity,  expressed  in  the  last  chapter  as  the 
freedom  of  each  limited  only  by  the  like  freedom  of  all, 
is  not  an  exclusively  a  ijriori  belief.  Though,  under  one 
aspect,  it  is  an  immediate  dictum  of  the  human  con- 
sciousness after  it  has  been  subject  to  the  discipline  of 
prolonged  social  life,  it  is,  under  another  aspect,  a  belief 
deducible  from  the  conditions  to  be  fulfilled,  firstly  for  the 
maintenance  of  life  at  large,  and  secondly  for  the  main- 
tenance of  social  life. 

Examination  of  the  facts  has  shown  it  to  be  a  funda- 
mental law,  by  conformity  to  which  life  has  evolved 
from  its  lowest  up  to  its  highest  forms,  that  each  adult 
individual  shall  take  the  consequences  of  its  own  nature 
and  actions  :  survival  of  the  fittest  being  the  result.  And 
the  necessary  implication  is  an  assertion  of  that  full 
liberty  to  act  which  forms  the  positive  element  in  the 
formula  of  justice ;  since,  without  full  liberty  to  act,  the 
relation  between  conduct  and  consequence  cannot  be  main- 
tained. Various  examples  have  made  clear  the  conclusion, 
manifest  in  theory,  that  among  gregarious  creatures  this 
freedom  of  each  to  act,  has  to  be  restricted ;  since  if  it  is 


THE    AUTHORITY    OP   THIS    FOKMULA.  Gl 

unrestricted  tliere  must  arise  sucli  clasliing  of  actions  as 
prevents  the  gregariousness.  And  tlie  fact  that^  relatively 
unintelligent  thougli  they  are,  inferior  gregarious  creatures 
inflict  penalties  for  breaches  of  the  needful  restrictions, 
shows  how  regard  for  them  has  come  to  be  unconsciously 
established  as  a  condition  to  persistent  social  life. 

These  two  laws,  holding,  the  one  of  all  creatures  and  the 
other  of  social  creatures,  and  the  display  of  which  is  clearer 
in  proportion  as  the  evolution  is  higher,  find  their  last  and 
fullest  sphere  of  manifestation  in  human  societies.  We 
have  recently  seen  that  along  with  the  growth  of  peaceful 
co-operation  there  has  been  an  increasing  conformity  to  this 
compound  law  under  both  its  positive  and  negative  aspects ; 
and  we  have  also  seen  that  there  has  gone  on  simultaneously 
an  increase  of  emotional  regard  for  it  and  intellectual 
apprehension  of  it. 

So  that  we  have  not  only  the  reasons  above  given  for 
concluding  that  this  a  'priori  belief  has  its  origin  in  the 
experiences  of  the  race,  but  we  are  enabled  to  affiliate  it 
on  the  experiences  of  living  creatures  at  large,  and  to 
perceive  that  it  is  but  a  conscious  response  to  certain 
necessary  relations  in  the  order  of  nature. 

No  higher  warrant  can  be  imagined;  and  now,  accepting 
the  law  of  equal  freedom  as  an  ultimate  ethical  principle, 
having  an  authority  transcending  every  other,  we  may 
proceed  with  our  inquiry. 


CHAPTER  VIII. 

ITS   COEOLLAEIES. 

§  36.  Men's  activities  are  many  in  their  kinds  and  the 
consequent  social  relations  are  complex.  Hence,  that  the 
general  formula  of  justice  may  serve  for  guidance,  deduc- 
tions must  be  drawn  severally  applicable  to  special  classes 
of  cases.  The  statement  that  the  liberty  of  each  is  bounded 
only  by  the  like  liberties  of  all,  remains  a  dead  letter  until 
it  is  shown  what  are  the  restraints  which  arise  under  the 
various  sets  of  circumstances  he  is  exposed  to. 

Whoever  admits  that  each  man  must  have  a  certain 
restricted  freedom,  asserts  that  it  is  right  he  should  have  this 
restricted  freedom.  If  it  be  shown  to  follow,  now  in  this 
case  and  now  in  that,  that  he  is  free  to  act  up  to  a  certain 
limit  but  not  beyond  it,  then  the  implied  admission  is  that 
it  is  right  he  should  have  the  particular  freedom  so  defined. 
And  hence  the  several  particular  freedoms  deducible  may 
titly  be  called,  as  they  commonly  are  called,  his  rights. 

§  37.  Words  are  sometimes  profoundly  discredited 
by  misuse.  The  true  ideas  they  connote  become  so  inti- 
mately associated  with  false  ideas,  that  they  in  large 
measure  lose  their  characters.  This  is  conspicuously  the 
case  with  the  word  "  rights." 

In  past  times  rivers  of  blood  were  shed  in  maintaining 
the  "right**  of  this  or  that  person  to  a  throne.     In  the 


ITS    COKOLLARIES.  63 

days  of  tte  old  Poor  Law  tlie  claims  o£  the  pauper  were 
habitually  urged  on  the  ground  that  he  had  a  "right" 
to  a  maintenance  out  of  the  soil.  Not  many  years  since 
we  were  made  familiar  with  the  idea,  then  current  among 
French  working-Tnen,  that  they  had  a  *^ right''' to  labour; 
that  is,  a  right  to  have  labour  provided  for  them.  At  the 
present  time  communists  use  the  word  "  rights  "  in  ways 
which  entirely  invert  the  meaning  given  to  it  by  past 
usages.  And  so  lax  is  the  application  of  the  word  that 
those  who  pander  to  the  public  appetite  for  gossip  about 
notable  personages,  defend  themselves  by  saying  that  "  the 
public  has  a  '  right '  to  know." 

^  The  consequence  has  been  that,  in  many  of  the  culti- 
vated, there  has  been  produced  a  confirmed,  and  indeed  con- 
temptuous, denial  of  rights.  There  are  no  such  things, 
say  they,  except  such  as  are  conferred  by  law.  Following 
Bentham,  they  affirm  that  the  State  is  the  originator  of 
rights,  and  that  apart  from  it  there  are  no  rights. 

But  if  lack  of  discrimination  is  shown  in  such  misuse 
of  words  as  includes  under  them  more  than  should  be 
included,  lack  of  discrimination  is  also  shown  in  not  per- 
ceiving those  true  meanings  which  are  disguised  by  the 
false  meanings. 

§  38.  As  is  implied  above,  rights,  truly  so  called,  are 
corollaries  from  the  law  of  equal  freedom,  and  v,'hat  are 
falsely  called  rights  are  not  deducible  from  it. 
_  In  treating  of  these  corollaries,  as  we  now  proceed  to 
do,  we  shall  find  that,  in  the  first  place,  they  one  and  all 
coincide  with  ordinary  ethical  conceptions,  and  that,  in 
the  second  place,  they  one  and  all  correspond  Avith  legal 
enactments.  Further,  it  will  become  apparent  that  so 
far  is  it  from  being  true  that  the  warrant  for  what  are 
projDerly  called  rights  is  derived  from  law,  it  is,  conversely, 
true  that  law  derives  its  warrant  from  them. 


CHAPTER  IX. 

THE   RIGHT   TO   PHYSICAL  INTEGRITY. 

§  89.  For  using  a  title  that  is  so  apparently  pedantic, 
my  defence  must  be  tliat  no  otlier  adequately  expresses 
everything  to  be  included  in  the  chapter.  The  physical 
integrity  which  has  to  be  claimed  for  each,  may  at  the 
one  extreme  be  destroyed  by  violence,  and  at  the  other 
extreme  interfered  with  by  the  nausea  which  a  neigh- 
bouring nuisance  causes. 

It  is  a  self-evident  corollary  from  the  law  of  equal 
freedom  that,  leaving  other  restraints  out  of  consideration, 
each  man's  actions  must  be  so  restrained  as  not  directly  to 
inflict  bodily  injury,  great  or  small,  on  any  other.  In 
the  first  place,  actions  carried  beyond  this  limit  imply 
the  exercise  on  one  side  of  greater  freedom  than  is  exer- 
cised on  the  other,  unless  it  be  by  retaliation  ;  and  we 
have  seen  that,  as  rightly  understood,  the  law  does  not 
countenance  aggression  and  counter-aggression.  In  the 
second  place,  considered  as  the  statement  of  a  condition 
by  conforming  to  which  the  greatest  sum  of  happiness  is 
to  be  obtained,  the  law  forbids  any  act  which  inflicts 
physical  pain  or  derangement. 

§  40.  Only  for  form's  sake  is  it  needful  to  specify 
under  this  general  head,  the  right  to  life  and  the  conse- 
quent  interdict    on     murder.      This,    which    in    civilized 


THE    EIGHT    TO    PHYSICAL    INTEGEITT.  6o 

communities  is  regarded  as  tlie  blackest  of  crimes,  mny 
be  considered  as  unconsciously,  if  not  consciously,  thus  re- 
garded because  it  is  tlie  greatest  possible  breach  of  the 
law  of  equal  freedom ;  for  by  murder  another's  power  to 
act  is  not  merely  interfered  with  but  destroyed.  While, 
however,  it  is  not  needful  to  insist  on  this  first  deduction 
from  the  law  of  equal  freedom,  that  life  is  sacred,  it  will 
be  instructive  to  observe  the  successive  steps  towards 
recognition  of  its  sacredness. 

Noting  as  an  extreme  case  that  of  the  Fijians,  among 
whom  murder  is,  or  was,  thought  honourable,  we  may 
pass  to  the  many  cases  fui'uished  by  savage  tribes  who 
kill  their  old,  diseased,  and  useless  members.  Various  of 
the  early  European  peoples,  too,  did.  the  like.  Grimm  tells 
US  that  among  the  Wends  "  the  children  killed  their  aged 
parents,  blood  and  other  relatives,  also  those  who  no  longer 
were  fit  for  war  or  work,  and  then  cooked,  and  ate  them,  or 
buried  them  alive.'^  "The  Herulians,  also,  killed  their 
aged  and  sick.  .  .  Later  traces  of  the  custom  of  killing 
the  aged  and  sick  are  found  in  North  Germany.''^ 

Apart  from  this  deliberate  destruction  of  incapable 
members  of  the  tribe,  which  very  generally  had  the 
excuse  that  it  was  needful  for  preservation  of  the  capable, 
there  has  habitually  existed,  in  primitive  social  groups,  no 
public  i-ecognition  of  murder  as  a  crime.  Of  the  Homeric 
Greeks  Grote  writes  that  the  murderer  had  to  dread  only 
"  the  personal  vengeance  of  the  kinsmen  and  friends." 
These  might  compound  for  the  offence  by  a  stipulated 
payment.  All  that  the  chiefs  did  in  such  cases  was  to  see 
that  the  bargains  were  fulfilled.  In  later  times  through- 
out Europe,  the  same  ideas,  sentiments,  and  practices 
prevailed.  It  was  not  so  much  the  loss  of  his  life  by 
the  man  slain  which  constituted  the  evil,  as  the  injury 
done  to  his  family  or  clan  :  this  was  the  wrong  which 
had  to  be  avenged  or  compounded  for.  Hence  it  was 
a  matter  of  comparative  indifference  whether  the  actual 
4 


68  JUSTICE. 

mnrderer  was  killed  in  return,  or  whether  some  guilt- 
less member  of  the  murderer's  kindi-ed.  And  this,  too, 
was  probably  a  part  cause  for  the  gradation  in  the 
compensations  to  be  made  for  murders  according  to  the 
rank  of  the  murdered — compensations  which,  after  being 
in  earlier  stages  matters  of  private  agreement,  came 
presently  to  be  established  by  law.  And  to  how  small 
an  extent  the  conception  of  the  sacredness  of  life  had 
grown  up,  is  seen  in  the  fact  that  the  slave  had  no 
vcergeld  or  hot :  his  lord  could  slay  him  if  he  pleased,  and 
if  slain  by  some  one  else  his  value  as  a  chattel  only  could 
be  demanded. 

An  unobtrusive  step  towards  recognition  of  murder  as 
something  more  than  a  private  offence,  took  place  when 
part  of  the  money  paid  in  compensation  went  to  the  king  : 
the  idea  being,  in  considerable  measure,  still  the  same ; 
since  destruction  of  a  subject  was  destruction  of  a 
portion  of  the  king's  power  over  subjects,  and  did, 
in  effect,  diminish  the  strength  of  his  society  for  fighting 
purposes.  But  the  continuance  of  the  different  fines 
adjusted  to  different  ranks,  shows  how  little  the  intrinsic 
criminality  of  murder  was  recognized;  and  this  is  further 
shown  by  the  distinction  which  benefit  of  clergy  made. 
Up  to  the  time  of  the  Plantagenets  a  murderer  "  who  knew 
how  to  read  escaped  from  nearly  all  punishment." 

Merely  noting  that  a  great  step  was  made  under 
the  Commonwealth,  when  "  benefit  of  clergy  was  to  be 
abolished  absolutely; "  when,  "  by  a  separate  Act,  wager 
of  battle  was  abolished ; "  and  when  "  the  same  Act 
punished  duelling  with  extraordinary  severity "  (legisla- 
tion which  recognized  the  intrinsic  guilt  of  murder)  we 
may  come  at  once  to  modern  times.  No  class-distinction 
can  now  be  pleaded  in  mitigation,  and  no  condonation 
under  any  form  is  possible. 

The  course  of  this  progress  presents  three  significant 
facts.     ]\Iaintenance    of   life  is  in  the    eai'liest    stages    an 


THE    EIGUT   TO    PHYSICAL   INTEGRITY.  67 

entirely  private  affair^  as  among  brutes;  and  to  the  taking 
of  it  there  is  attached  scarcely  more  idea  of  wrong  than 
among  brutes.  With  growing  social  aggregation  and 
organization,  the  taking  of  life  comes  to  be  more  and 
more  regarded  as  a  wrong  done,  first  to  the  family  or  the 
clan,  and  then  to  the  society;  and  it  is  punished  rather  as 
a  sin  against  society  than  as  a  sin  against  the  individual. 
But  eventually,  while  there  is  retained  the  conception  of 
its  criminality  as  a  breach  of  the  law  needful  for  social 
order,  there  becomes  predominant  the  conception  of  its 
criminality  as  an  immeasurable  and  irremediable  wrong 
done  to  the  murdered  man.  This  consciousness  of  the 
intrinsic  guilt  of  the  act,  implies  a  consciousness  of  the 
intrinsic  claim  of  the  individual  to  life  :  the  right  to  life 
has  acquired  the  leading  place  in  thought. 
i 

!  §  41.  The  connexion  between  such  degree  of   bodily 

!  injury  as  causes  death,  and  such  degree  of  bodily  injury 
as  causes  more  or  less  incapacity  for  carrying  on  life,  has 
all  along  been  too  obvious  to  escape  recognition.  Hence, 
^Yith  that  tacit  assertion  of  the  right  to  physical  integrity 
which  is  implied  by  the  punishment  of  murder,  there  has 
gone  such  further  tacit  assertion  of  it  as  is  implied  by 
punishments  for  inflicting  mutilations,  wounds,  &c.  Natur- 
ally, too,   there   has    been   a  certain  parallelism  between 

■  the   successive  stages   in  the   two  cases ;    beginning  with 

■  that  between  life  for  life  and  "an  eye  for  an  eye.-" 

t  When,  after  the  early  stage  in  which  retaliation  v.as 
entirely  a  private  affair,  there  was  reached  the  stage  in 
which  it  came  to  be  an  affair  concerning  the  family  or 
clan,  we  see  that  as  the  clan  avenged  itself  by  taking  fx-om 
an  offending  clan  a  life  to  balance  the  life  it  had  lost,  so 
by  insisting  on  a  substituted,  if  not  an  actual,  equivalent, 
it  sought  to  avenge  an  injury  which  was  not  fatal.  This  is 
shown  by  the  fact  that  after  the  system  of  money-damages 
had  grown  up,  the  price,  not  only  for  a  life  but  for  a  limb. 


68  JUSTICE. 

was  to  be  paid  by  tlie  family  or  bouse  of  tbe  ■wroTig-doer 
to  the  family  or  bouse  of  tbe  wronged.  A  furtber  fact 
implies  tbis  same  conception.  Witb  tbe  Germanic  tribes 
and  tbe  early  Englisb,  along  witb  compensations  for 
bomicide,  varying  according  to  rank^  tbere  went  "as 
large  a  scbeme  of  compensations  for  minor  injuries/' 
also  according  to  rank.  Tbe  implication  in  botb  cases  is 
tbat  tbe  damage  to  tbe  family  or  clan  was  dominant  in 
tbougbt^  ratber  tban  tbe  damage  to  tbe  indiyidual.  Tbe 
like  beld  in  ancient  Russia. 

As  fast  as  tbe  social  life  of  smaller  groups  or  clans^ 
merged  into  tbe  social  life  of  larger  groups  or  nations,,  the 
idea  of  injury  to  tbe  nation  began  to  replace  tbat  of  injury 
to  tbe  clan  ;  and  at  first  part,  and  eventually  tbe  wbole,  of 
tbe  fine  or  amercement  payable  by  one  wbo  bad  committed 
an  assault^  went  to  tbe  State ;  and  tbis  usage  still  survives. 
Tbougb  in  cases  of  personal  violence  tbe  current  conscious- 
ness is  now  mainly  occupied  by  sympathy  witb  the  injured 
man,  and  reprobation  of  tbe  offender  for  baving  inflicted 
pain  and  accompanyiug  mischief,  yet  tbe  State  appro- 
priates tbe  condonation-money,  and  leaves  tbe  sufferer  to 
bear  tbe  evil  as  best  be  may. 

•But  in  modern  days  we  see  growth  of  a  bigber  conception, 
in  tbe  awarding  of  compensations  for  injuries  whicb  bave 
resulted  from  negligence.  Tbe  claim  of  tbe  citizen  against 
a  fellow-citizen,  not  only  for  bodily  damage  voluntarily 
inflicted  on  him  but  for  bodily  damage  caused  by  careless 
actions  or  inactions,  dates  back  some  centuries  at  least. 
Much  more  extensive  applications  of  tbe  principle  bave 
of  late  years  been  made;  sucb  as  tbose  whicb  render  a 
railway-compauy  liable  for  injuries  caused  by  imperfection 
of  its  appliances  or  inattention  of  its  officials,  and  private 
employers  for  tbose  entailed  on  workmen  by  defective 
apparatus,  by  lack  of  safeguards,  or  by  operations  involving 
risk.  Tbese  developments  of  law  imply  bigber  apprecia- 
tions of  tbe  claims  of  tbe  individual  to  pbysical  integrity; 


TUE    EIGHT    TO    PUYSICAL    INTEGRITY.  69 

and  tlie  fact  tliat  tlie  person  or  company  responsible  for 
the  miscliief  done,  is  called  upon  to  pay  damages  to  the 
sufiferer  and  not  to  the  State,  is  one  of  tlie  proofs  that 
the  claim  of  tlie  individual  to  physical  integrity,  now 
occupies  in  tlie  general  consciousness  a  greater  space 
than  tlie  thought  of  social  detriment  done  by  disregard 
of  sucli  claim. 

L-Nor  must  vre  omit  to  note,  in  proof  of  the  same  thing, 
tliat  what  we  may  call  tlie  sacredness  of  tlie  person, 
has  in  our  days  been  further  insisted  on  by  laws  which 
regard  as  assaults,  not  only  such  acts  of  violence  as  cause 
slight  injuries,  but  such  as  are  constituted  by  intentional 
pushes  or  other  forcible  interferences  with  another's  body, 
or  even  by  threatening  uses  of  the  hands  without  actual 
contact ;  and  laws  which  also  make  a  kiss,  taken  without 
consent,  a  punishable  offence. 

§  42.  One  more  trespass  against  physical  integrity, 
not  in  early  times  thought  of  as  such,  but  held  to  be  such 
in  our  times,  is  that  which  consists  in  the  communication  of 
disease. 

This  is  a  kind  of  trespass  which,  though  grave,  and  though 
partly  recognized  in  law,  occupies  neither  in  law  nor  in  the 
general  conscience  so  distinct  a  place  as  it  should  do : 
probably  because  of  the  indefiniteness  and  uncertainty  of 
the  mischievous  results.  Here  is  a  father  who  fetches 
home  his  boy  suffering  from  an  epidemic  disease,  regardless 
of  the  fact  that  the  railway-carriage  in  which  they  travel 
may  not  improbably  infect  others;  and  here  is  a  mother 
who  asks  the  doctor  whether  her  children  have  sufficiently 
recovered  from  scarlet  fever  to  go  to  school,  and  proposes 
to  send  them  notwithstanding  the  intimation  that  they 
may  very  possibly  convey  the  disease  to  their  school- 
fellows. Such  acts  are,  indeed,  punishable ;  but  they  so 
commonly  pass  without  detection,  and  the  evils  likely  to  be 
inflicted   are  so  faintly  conceived,  that  they  are  scarcely 


70  JUSTICE. 

thouglit  of  as  offences;  thougli  they  really  ought  to  be 
regarded  as  something  like  crimes — if  not  actual  crimes, 
then  potential  crimes. 

For  let  us  remember  tliat  tliere  is  now  recognized  by  law 
and  by  public  conscience,  the  truth  that  not  only  actual 
physical  mischiefs  to  others  but  also  potential  physical  mis- 
chiefs to  others,  are  flagitious.  We  have  reached  a  stage  in 
which  the  body  of  each  person  is  so  far  regarded  as  a  terri- 
tory inviolable  by  any  other  person,  that  we  rank  as  offences 
all  acts  which  are  likely  to  bring  about  violation  of  it. 

§  43.  Thus  it  is  undeniable  that  what  we  see  to  be  the 
primary  corollary  from  the  formula  of  justice,  has  been,  in 
the  course  of  social  evolution  and  the  accompanying  evolu- 
tion of  Man's  mental  nature,  gradually  establishing  itself. 
Prolonged  converse  with  the  conditions  under  which  alone 
social  life  can  be  harmoniously  carried  on,  has  slowly 
moulded  sentiments,  ideas,  and  laws,  into  conformity  with 
this  primary  ethical  truth  deducible  from  those  conditions."^ 
That  which  it  here  concerns  us  specially  to  note,  is  that 
murder,  manslaughter,  mutilation,  assault,  and  all  tres- 
passes against  physical  integrity  down  to  the  most  trivial, 
have  not  become  transgressions  in  virtue  of  laws  forbidding 
them,  nor  in  virtue  of  interdicts  having  a  supposed  super- 
natural origin ;  but  they  have  become  transgressions  as 
being  breaches  of  certain  naturally-originated  restraints. 

It  remains  only  to  say  that  while,  in  a  system  of  absolute 

*  A  barrister  who  has  devoted  much  attention  to  the  evolution  of  law, 
has  obliged  me  by  checking  the  statements  which  preceding  and  succeeding 
chapters  contain  respecting  laws,  past  and  present.  To  the  above  paragraph 
he  has  appended  the  following  note  :- 

"  The  late  Clitheroe  abduction  case  which  establishes  that  a  man  may 
not  forcibly  detain  his  own  wife,  is  an  interesting  example  of  this  doctrine. 
In  this  case  the  right  of  married  women  to  physical  liberty  has  only  just  been 
established  by  a  Court  of  Appeal ;  and  that  against  the  opinion  of  two  very 
able  judges  of  1st  instance,  who  thought  that  the  old  law  was  otherwise. 

The  punishment  by  justices  of  School-board  teachers,  for  the  use  of  the 
rod  on  the  boys,  is  another  example  of  this  growing  feeling,  which  moulds 
the  law  while  assuming  only  to  administer  it." 


THE    RIGHT    TO    PHYSICAL   INTEGRITT.  71 

ethics,  the  corollary  here  drawn  from  the  formula  of  justice 
is  unqualified,  in  a  system  of  relative  ethics  it  has  to  bo 
qualified  by  the  necessities  of  social  self-preservatiou. 
Already  we  have  seen  that  the  primary  law  that  each 
individual  shall  receive  and  suffer  the  benefits  and  evils  of 
his  own  nature,  following  from  conduct  carried  on  with  due 
regard  to  socially-imposed  limits,  must,  where  the  group 
is  endangered  by  external  enemies,  be  modified  by  the 
secondary  law,  which  requires  that  there  shall  be  such 
sacrifice  of  individuals  as  is  required  to  preserve,  for  the 
aggregate  of  individuals,  the  ability  thus  to  act  and  to 
receive  the  results  of  actions.  Hence,  for  purposes  of 
defensive  war,  there  is  justified  such  contingent  loss  of 
physical  integrity  as  effectual  defence  of  the  society 
requires  :  supposing,  always,  that  effectual  defence  is 
possible.  For  it  would  seem  to  be  an  implication  that 
where  the  invading  force  is  overwheluiing,  such  sacrifice  of 
individuals  is  not  justified. 

"We  see  here,  indeed,  as  we  shall  see  throughout  all 
subsequent  chapters,  that  the  requirements  of  absolute 
ethics  can  be  wholly  conformed  to  only  in  a  state  of 
permanent  peace  ;  and  that  so  long  as  the  world  continues 
to  be  occupied  by  peoples  given  to  political  burglary,  the 
requirements  of  relative  ethics  only,  can  be  fulSlled. 


CHAPTER  X. 

THE   EIGHTS  TO  FEEE   MOTION  AND  LOCOMOTION. 

§  44.  As  direct  deductions  from  tlie  formula  of  justice, 
the  right  of  each,  man  to  the  use  of  unshackled  limbs,  and 
tlie  right  to  move  from  place  to  place  without  hindrance, 
are  almost  too  obvious  to  need  specifjang.  Indeed  these 
rights,  more  perhaps  than  any  others,  are  immediately 
recognized  in  thought  as  corollaries.  Clearly,  one  who  binds 
another's  limbs,  chains  him  to  a  post,  or  confines  him  in  a 
dungeon,  lias  used  greater  liberty  of  action  than  his 
captive;  and  no  less  clear  is  it  that  if,  by  threatened 
punishment  or  otherwise,  he  debars  him  from  changing 
his  locality,  he  commits  a  kindred  breach  of  the  law  of 
equal  freedom. 

Further,  it  is  manifest  that  if,  in  either  of  these  ways,  a 
man's  liberty  of  action  is  destroyed  or  diminished,  not  by 
some  one  other  man  but  by  a  number  of  other  men  acting 
jointly — if  each  member  of  a  lower  class  thus  has  his 
powers  of  motion  and  locomotion  partially  cut  off  by  the 
regulations  w^hich  a  higher  class  has  established,  each 
member  of  that  higher  class  has  transgressed  the  ultimate 
principle  of  equity  in  like  manner  if  in  a  smaller  degree. 

§  45.  We  have  already  seen  that  the  instinct  prompt- 
ing flight,  as  well  as  the  desire  to  escape  when  captured, 
show  us  in  sub-human  beings,  as  well  as  in  human  beings, 


THE    RIGHTS    TO    FREE    MOTION    AND    LOCOMOTION.  73 

the  presence  of  that  impulse  which  finally  emerges  as  a 
conscious  claim  to  free  motion  and  locomotion.  But  while 
this  positive  element  in  the  sentiment  corresponding  to  the 
right,  deep-rooted  as  it  is,  early  manifests  itself,  the 
negative  element  in  it,  corresponding  to  the  imposed  limits, 
has  to  await  the  discipline  of  sociality  before  it  can  reach 
any  considerable  development. 

We  have  instances  showing  that  where  governmental 
control  does  not  exist,  or  is  very  feeble,  the  tacit 
claim  to  unhindered  movement  is  strongly  pronounced ; 
whether  the  nature  be  of  a  savage  kind  or  of  a  gentle  kind. 
Of  the  one  class  may  be  named  the  Abors,  who  are  so  self- 
asserting  that  they  cannot  live  together,  and  the  Nagas  to 
whom  the  notion  of  restraint  is  so  foreign  that  they  ridicule 
the  idea  of  a  ruler.  Of  the  other  class  I  may  instance 
the  before-named  Lepchas,  who,  mild  as  they  are,  fly  to 
the  woods  and  live  on  roots  rather  than  submit  to  coercion ; 
and  the  Jakuns,  who  are  greatly  valued  as  servants 
because  of  their  vii'tues,  but  who  disappear  at  once  if 
authority  is  injudiciously  exercised  over  them.  Having  in 
common  a  strong  sense  of  personal  liberty,  these  types  of 
men  differ  in  the  respect  that  while,  in  the  warlike  type, 
this  sense  is  egoistic  only,  it  is,  in  the  peaceful  type, 
altruistic  also — is  joined  with  respect  for  the  personal 
liberties  of  others. 

Out  of  primitive  unorganized  groups,  or  gronps  of  which 
the  organization  is  very  slight,  the  progress  to  large  and 
organized  groups  is  effected  by  war.  While  this  implies 
little  regard  for  life,  it  also  implies  little  regard  for  liberty ; 
and  hence,  in  the  course  of  the  process  by  which  nations 
are  formed,  recognition  of  the  claim  to  liberty,  as  well  as  of 
that  to  life,  is  subordinated  :  the  sentiment  is  continually 
repressed  and  the  idea  is  rendered  vague.  Only  after 
social  consolidation  has  made  great  progress,  and  social 
organization  has  become  in  large  measure  industrial — only 
when  militancy  has  ceased  to  be  constant  and  the  militant 


74  JUSTICE. 

type  of  structure  lias  relaxed,  do  the  sentiment  and  tlie  idea 
become  more  marked. 

Here  we  liave  to  glance  at  some  of  the  steps  through 
which  the  claim  to  freedom  of  motion  and  locomotion  is 
gradually  established,  ethically  and  legally. 

§  46.  It  has  been  remarked  with  truth  that  the  rise  of 
slavery  was  practically  a  limitation  of  cannibalism,  and  in 
so  far  a  progress.  When  the  prisoner  of  war  was  allowed 
to  live  and  work  instead  of  being  cooked  and  eaten,  the 
fundamental  principle  of  equity  was  no  longer  absolutely 
negatived  in  his  person;  for  the  continuance  of  his  life, 
even  under  the  imposed  conditions,  made  possible  some 
maintenance  of  the  relation  between  conduct  and  con- 
sequence. Where  the  enslaved  prisoners  and  their 
descendants,  fed  and  sheltered  to  the  extent  required  for 
making  use  of  them  as  working  cattle,  are  also  liable  at  any 
time  to  be  made  into  food,  as  until  lately  among  the  Fijians, 
this  mitigation  of  cannibalism  is  relatively  small;  but  where, 
as  among  many  of  the  uncivilized,  the  slave  is  treated  in 
large  measure  as  a  member  of  the  family,  the  restraints  on 
his  freedom  are  practically  not  much  greater  than  those  to 
which  the  children  are  subject. 

To  specify  the  different  forms  and  qualifications  of 
bondage  which  have  existed  among  various  peoples  at 
different  times  and  under  changing  social  conditions,  would 
be  needless  for  our  purpose  here,  even  were  it  practicable. 
Such  facts  only  must  be  named  as  indicate  how  the  concep- 
tion of  individual  liberty  grew  up,  alike  in  law  and  in  ethics. 
We  may  note  that  among  the  Hebrews,  while  persons  of 
foreign  blood  might  be  bought  and,  with  their  children, 
inherited  as  possessions,  those  of  Hebrew  blood  who  sold 
themselves,  either  to  men  of  their  own  race  or  to  strangers 
sojourning  among  them,  were  subject  to  a  slavery  qualified 
alike  in  respect  of  length  and  rigour :  the  reason  given 
being  that,  as  servants  of  God,  they  could  not  be  permanently 


THE    EIGHTS    TO    FREE    MOTION   AND    LOCOilOTION.  75 

alienated.  But  there  -wris  neither  recognition  of  any  wrong 
inflicted  by  enslavement^  nor  of  any  correlative  right  to 
freedom.  This  lack  of  the  sentiments  and  ideas  which,  in 
modern  times,  have  become  so  pronounced,  continued  to  the 
time  when  Christianity  arose,  and  was  not  changed  by 
Christianity.  Neither  Christ  nor  his  apostles  denounced 
slavery;  and  when,  in  reference  to  freedom,  there  was 
given  the  advice  to  *^use  it  rather"  than  slavery,  there  was 
manifestly  implied  no  thought  of  any  inherent  claim  of  each 
individual  to  unhindered  exercise  of  free  motion  and  loco- 
motion. So  was  it  among  the  Greeks ;  as,  indeed,  it  has 
been  among  most  peoples  during  early  stages.  In  Homeric 
times,  captives  taken  in  war  were  enslaved  and  might  be 
sold  or  ransomed;  and  throughout  Greek  civilization, 
accompanying  warfare  that  was  practically  chronic,  slavery 
was  assumed  to  be  a  normal  part  of  the  social  order.  Lapse 
into  bondage  by  capture,  debt,  or  otherwise,  was  regarded 
as  a  misfortune ;  and  no  reprobation  attached  to  the  slave- 
owner. That  is  to  say,  the  conception  of  freedom  as  an 
inalienable  right  of  each  man,  had  little  or  no  place  in 
either  ethics  or  law.  Inevitably,  indeed,  it  was  suppressed 
in  relation  to  slaves,  literally  so-called,  when  even  those 
who  were  nominally  free  were  in  reality  slaves  of  the  State 
— when  each  citizen  belonged  not  to  himself  but  to  his  city. 
And  it  is  noteworthy  that  in  the  most  v/arlike  Greek  state, 
Sparta,  not  only  was  the  condition  of  the  helot  more  abject 
than  elsewhere,  but  the  Spartan  master  himself  was 
deprived  in  a  greater  degree  than  elsewhere  of  the  power 
to  order  his  own  movements  as  he  pleased. 

Indeed  we  may  recognize,  generally,  the  fact  that  in 
states  which  have  grown  considerably  in  size  and  structure, 
it  has  naturally  happened  that  since  they  have  thus  grown 
by  external  aggression  and  conquest,  implying,  as  it  always 
does,  internal  coercion,  individuality  has  been  so  greatly 
repressed  as  to  leave  little  trace  in  law  and  usage. 

§  47.  To   illustrate  the  growth  in  morals  and  legisla- 


73  JUSTICE. 

tion  of  tliat  conception  of  human  freedom  whicli  ias  now 
become  established  among  the  leading  civilized  races^  it  will 
suffice  if  we  glance  at  some  of  the  chief  steps  traceable  in 
our  own  history. 

Militant  as  were  the  successive  swarms  of  invaders  who, 
now  subjugating  and  now  expelling  the  previous  possessors 
of  the  soilj  peopled  the  country  in  old  English  days,  it  of 
course  happened  that  slaves  existed  among  them — a  class  of 
the  unfree,  originally  captives,  the  size  of  which  was  from 
time  to  time  augmented  by  the  addition  of  debtors  and 
criminals.  Along  with  the  growth  of  population  and 
accompanying  advance  of  political  organization,  those  who, 
under  the  original  Mark-system,  had  formed  a  class  of  free 
men,  gradually  lost  much  of  their  liberty  :  occasionally 
by  conflicts  within  groups,  in  the  course  of  which  some 
members  gained  predominance,  but  mostly  in  the  course  of 
external  conflicts,  leading  to  subjugations  and  establish- 
ments of  lordships.  Peasants  became  subject  to  thegns  and 
thegns  to  higher  nobles;  so  that  ''by  Alfred^s  day  it  was 
assumed  that  no  man  could  exist  without  a  lord  : ''  implying 
deprivation  of  freedom  not  only  in  members  of  the  lowest 
rank  (the  slaves  who  were  bought  and  sold)  but  in  members 
of  all  higher  ranks.  Amid  the  changes  which  followed  the 
Conquest,  this  limitation  of  liberty  implied  by  sworn  fealty 
contiuued ;  or  rather,  indeed,  was  increased,  save  in  the 
partial  abolition  of  trade  in  slaves.  With  the  growth  of 
towns  during  the  11th  century,  the  accompanying  develop- 
ment of  industrial  institutions,  the  implied  replacing  of 
relations  of  status  by  relations  of  contract,  and  the  develop- 
ment of  a  "  new  moral  sense  of  man's  right  to  equal  justice," 
came  a  "  transition  from  pure  serfage  to  an  imperfect 
freedom."  A  century  later  the  Great  Charter  put  restraints 
•on  arbitrary  rule,  and  the  consequent  losses  of  freedom  by 
citizens.  The  growing  influence  of  the  trading  classes 
was  shown  by  the  concession  of  liberty  of  journeying  to 
foreign  merchants.  And  then  when,  after  another  hundred 
years,   the  attachment  of   the  serf  to  the  soil,  gradually 


THE    RIGHTS    TO    FREE    MOTION    AND    LOCOMOTION.  77 

M'eakened,  had  been  broken,  the  fully  free  labourer  acquired 
the  right  of  unhindered  locomotion.  Though,  ho  partially 
lost  this  right  when  the  Black  Death  caused  so  large  a 
decrease  of  population,  and  consequent  great  rise  in  wages, 
that  there  was  prompted  a  statute  fixing  the  price  of  labour, 
and  tying  the  labourer  to  his  parish ;  yet  these  restraints, 
by  the  violent  resistance  they  caused,  led  to  a  violent 
assertion  of  equality,  not  only  in  respect  to  rio-ht  of 
locomotion  but  in  respect  to  other  things.  But  how  little 
the  claim  to  freedom  was  then  recognized  by  the  ruling 
classes,  was  shown  when,  after  the  subjugation  of  the 
revolting  peasants,  tlie  king  suggested  enfranchisement; 
and  when  the  landowners,  asserting  that  their  serfs  were 
their  goods,  said  that  consent  to  emancipation  "  we  have 
never  given  and  never  will  give,  were  we  all  to  die  in  one 
day.^'  As  increase  of  industrial  activity  and  organization 
had  produced  increase  of  liberty,  so,  conversely,  the  twenty 
years  of  militant  activity  known  as  the  Wars  of  the  Roses, 
destroyed  much  of  tbe  liberty  which  had  been  obtained  : 
not,  however,  the  detacbment  of  the  peasant  from  the  soil, 
and  consequent  ability  to  wander  about,  which,  in  the 
disturbed  social  state  left  by  the  collapse  of  feudalism, 
entailed  an  industrial  disorganization  that  was  remedied  by 
again  putting  the  labouring  class  under  partial  coercion, 
and  partially  attaching  them  to  their  localities,  without 
otherwise  restraining  their  movements.  The  freedom  thus 
obtained  had,  however,  still  to  be  safeguarded;  and  the 
provisions  against  arbitrary  imprisonment,  dating  from 
the  Great  Charter  but  often  broken  through,  were 
strengthened,  towards  the  end  of  the  17th  century,  by  the 
Habeas  Corpus  Act.  Save  slight  interferences  caused  by 
temporary  panics,  personal  liberty  in  England  thereafter 
continued  intact;  while  such  minor  restraints  on  freedom  of 
movement  as  were  involved  in  the  laws  forbidding  artizans 
to  travel  in  searcli  of  work,  were  formally  abolished  in  1824. 
And  now  let  ns  not  omit  to  note  that,  along  with  the 


78  JUSTICE. 

slow  legal  establisLment  o£  personal  liberty  there  has 
gone  a  growth  of  the  responsive  sentiment ;  and  that  with 
the  egoistic  assertion  of  liberty  has  been  eventually  joined 
the  altruistic  assertion  of  it.  Those  changes  which,  in  the 
course  of  many  centuries,  have  advanced  social  arrangements 
from  a  condition  of  complete  slavery  of  the  lowest,  and 
qualified  slavery  of  those  above  them,  to  a  state  of  absolute 
freedom  for  all,  have,  towards  their  close,  produced  both 
sentiment  and  law  asserting  this  freedom,  not  in  English 
citizens  only  but  in  aliens  under  English  rule — beginning 
with  the  emancipation  of  slaves  who  set  foot  on  English  soil, 
and  ending  with  the  emancipation  of  all  who  inhabited 
English  colonies  :  since  which  time  abolition  of  slavery  else- 
where has  been  a  constant  aim. 

§  48.  Unless  by  those  who  think  that  civilization  is 
a  backward  movement,  it  must,  then,  be  admitted  that 
induction  justifies  this  deduction  from  the  fundamental 
principle  of  equity.  Those  who  think  that  ancient  societies 
were  of  higher  types  than  our  own,  and  human  welfai-e 
better  achieved  by  them — those  who  think  that  feudal 
organization  with  its  grades  of  vassalage  superposed  on 
villeinage,  produced  a  greater  total  of  happiness  than  we  ex- 
perience now — those  who,  with  Mr.  Carlyle,  yearn  for  a  time 
like  that  of  Abbot  Sampson,  and  applaud  the  obedience  of 
the  Russians  to  their  Czar;  may  consistently  deny  that 
growth  of  the  sentiment  of  liberty,  and  establishment  of 
individual  freedom  by  law,  affoi  d  any  support  for  the 
abstract  inference  drawn  in  this  chapter.  But  those  who 
think  that  our  days  are  better  than  those  in  which  nobles 
lived  in  castles  and  wore  shirts  of  mail — those  who  think 
that  oubliettes  and  torture-chambers  were  accompaniments 
of  a  social  state  less  desirable  than  that  in  which  princes  as 
well  as  paupers  are  subject  to  the  administration  of  justice — 
those  who  think  that  the  reyime  which  brought  about 
peasant  revolts  was  inferior  to  that  which  is  characterized 


THE    RIGHTS    TO    FREE    MOTION   AND    LOCOMOTION.  79 

by  multitudinous  societies  for  furtliering  popular  welfare, 
must  admit  that  tlie  generalization  drawn  from  human  ex- 
periences at  large,  is  at  one  with  the  corollary  above  drawn 
from  the  formula  of  justice. 

But  this  dictum  of  absolute  ethics  has  to  be  qualified  by 
the  requirements  of  relative  ethics.  From  the  principle 
laid  down  at  the  outset,  that  the  preservation  of  the  species, 
or  that  variety  of  it  constituting  a  society,  is  an  end  which 
must  take  precedence  of  the  preservation  of  the  individual, 
it  follows  that  the  right  to  individual  liberty,  like  thu  right 
to  individual  life,  must  be  asserted  subject  to  qualifications 
entailed  by  the  measures  needful  for  national  safety.  Such 
trespass  on  liberty  as  is  required  to  preserve  liberty,  has  a 
quasi-ethical  warrp.nt.  Subject  only  to  the  condition  that 
all  capable  members  of  the  community  shall  be  equally 
liable  to  it,  that  restraint  on  the  rights  of  free  motion  and 
locomotion  necessitated  by  military  organization  and  dis- 
cipline, is  legitimate ;  provided  always  that  tlie  end  in 
view  is  defensive  war  and  not  offensive  wax*. 


CHAPTER  XI. 

THE  RIGHTS  TO  THE  USES  OF  NATUEAL  MEDIA. 

§  49.  A  man  may  be  entirely  uninjured  in  body  by 
the  actions  of  fellow-men,  and  be  may  be  entirely  unim- 
peded in  bis  movements  by  tliem,  and  he  may  yet  be 
prevented  from  carrying  on  the  activities  needful  for 
maintenance  of  life,  by  traversing  his  relations  to  the 
physical  environment  on  which  his  life  depends.  It  is, 
indeed,  alleged  that  certain  of  these  natural  agencies 
cannot  be  removed  from  the  state  of  common  possession. 
Thus  we  read : — 

"  Some  things  are  by  nature  itself  incapable  of  appropriation,  so  that  they 
cannot  be  brought  under  the  power  of  anyone.  These  got  the  name  of  res 
communes  by  the  Eoman  law;  and  were  defined,  things  thf,  property  of 
which  belongs  to  no  person,  but  the  use  to  all.  Thus,  the  light,  the  air, 
running  water,  &c.  are  so  adapted  to  the  common  use  of  mankind,  that  no 
individual  can  acquire  a  property  in  them,  or  deprive  others  of  their  use." 
{An  Institute  of  the  Law  of  Scotland  by  John  Erskine,  (ed.  Macallan)  i,  196.) 
But  though  light  and  air  cannot  be  monopolized,  the 
distribution  of  them  may  be  interfered  with  by  one  man  to 
the  partial  deprivation  of  another  man — may  be  so  interfered 
with  as  to  inflict  serious  injury  upon  him. 

No  interference  of  this  kind  is  possible  without  a  breach 
of  the  law  of  equal  freedom.  The  habitual  interception  of 
light  by  one  person  in  such  way  that  another  person  is 
habitually  deprived  of  an  equal  share,  implies  disregard  of 
the  principle  tliat  the  liberty  of  each  is  limited  by  the  like 


THE    RIGHTS    TO    THE    USES    Oi^    NATUiiAL    MEDIA.  81 

liberties  of  all;  and  tlie  like  is  true  if  free  access  to  air 
is  prevented. 

Under  the  same  general  liead  tliere  must^  however,  by 
an  unusual  extension  of  meaning,  be  here  included  some- 
thing •which  admits  of  appropriation — the  surface  of  the 
Earth.  'This,  as  forming  part  of  the  physical  environment, 
seems  necessarily  to  be  included  among  the  media  of  which 
the  use  may  be  claimed  under  the  law  of  equal  freedom. 
The  Earth's  surface  cannot  be  denied  to  any  one  absolutely, 
without  rendering  life-sustaining  activities  impracticable. 
^-In  the  absence  of  standing-ground  he  can  do  nothing;  and 
hence  it  appeai-s  to  be  a  corollary  from  the  law  of  equal 
freedom,  interpreted  with  strictness,  that  the  Earth's 
surface  may  not  be  appropriated  absolutely  by  individuals, 
but  may  be  occupied  by  them  only  in  such  manner  as 
recognizes  ultimate  ownership  by  other  men ;  that  is — by 
society  at  large. 

Concerning  the  ethical  and  legal  recognitions  of  these 
claims  to  the  uses  of  media,  not  very  much  has  to  be  said  ; 
only  the  last  demands  much  attention.  "We  will  look  a.t 
each  of  them  in  succession. 

§  50.  In  the  earliest  stages,  while  yet  urban  life  had 
not  commenced,  no  serious  obstruction  of  one  man's  light 
by  another  man  could  well  take  place.  In  encampments  of 
savages  and  in  the  villages  of  agricultural  tribes,  no  one 
was  led,  in  pursuit  of  his  ends,  to  overshadow  the  habi- 
tation of  his  neighbour.  Indeed,  the  structures  and  relative 
positions  of  habitations  made  such  aggressions  almost 
impracticable. 

In  later  times,  when  towns  had  gi'own  up,  it  was  unlikely 
that  much  respect  would  forthwith  be  paid  by  men  to  the 
claims  of  their  neighbours  in  respect  of  light.  During 
stages  of  social  evolution  in  which  the  rights  to  life  and 
liberty  were  little  regarded,  such  comparatively  trivial 
trespasses  as  were  committed  by  those  who  built  houses 


82  JUSTICE. 

close  in  front  of  otliers'  houses,  were  not  likely  to  attract 
mucli  notice^  considered  either  as  moral  transgressions  or 
legal  wrongs.  The  narrow,  dark  streets  of  ancient  conti- 
nental cities,  in  common  with  the  courts  and  alleys 
characterizing  the  older  parts  of  our  own  towns,  imply  that 
in  the  days  when  they  were  built  the  shutting  out  by  one 
man  of  another  man's  share  of  sun  and  sky,  was  not  thought 
an  oflfence.  And,  indeed,  it  may  reasonably  be  held  that 
recognition  of  such  an  oifence  was  in  those  days  impracti- 
cable; since,  in  walled  towns,  the  crowding  of  houses 
became  a  necessity. 

In  modern  times,  however,  there  has  arisen  the  per- 
ception that  the  natural  distribution  of  light  may  not  be 
interfered  with.  Though  the  law  which  forbids  the  building 
of  walls,  houses,  or  other  edifices  of  certain  heights,  within 
prescribed  distances  from  existing  houses,  does  not  abso- 
lutely negative  the  intercepting  of  light ;  yet  it  negatives 
the  intercepting  of  it  to  serious  degrees,  and  seeks  to 
compromise  the  claims  of  adjacent  owners  as  fairly  as 
seems  practicable. 

That  is  to  say,  this  corollary  from  the  law  of  equal 
freedom,  if  it  has  not  come  to  be  overtly  asserted,  has 
come  to  be  tacitly  recognized. 

§  51.  To  some  extent  interference  with  the  supply  of 
light  involves  interference  with  the  supply  of  air  ;  and,  by 
interdicting  the  one,  some  interdict  is,  by  implication,  placed 
on  the  other.  But  the  claim  to  use  of  the  air,  though  it  has 
been  recognized  by  English  law  in  the  case  of  windmills, 
is  less  definitely  established :  probably  because  only  small 
evils  have  been  caused  by  obstructions. 

There  has,  however,  risen  into  definite  recognition  the 
claim  to  unpolluted  air.  Though  acts  of  one  man  which 
may  diminish  the  supply  of  air  to  another  man,  have  not 
come  to  be  distinctly  classed  as  wrong;  yet  acts  which 
vitiate  the  quality  of  his  air  are  in  modern  times  regarded 
as  offences — offences   for  which   there   are   in   some  cases 


THE    EIGHTS    TO    THE    USES    OP   NATURAL    MEDIA.  83 

moral  reprobations  onlj^  and  in  other  cases  legal  penalties. 
In  some  measure  all  are  severally  obliged,  by  their  own 
respii'ation,  to  vitiate  the  air  respired  by  others,  where  they 
are  in  proximity.  It  needs  but  to  walk  a  little  distance 
behind  one  who  is  smoking,  to  perceive  how  Avidely  diffused 
are  the  exhalations  from  each  person's  lungs  ;  and  to  what 
an  extent,  therefore,  those  who  are  adjacent,  especially 
indoors,  are  compelled  to  breathe  the  air  that  has 
already  been  taken  in  and  sent  out  time  after  time.  But 
since  this  vitiation  of  air  is  mutual,  it  cannot  constitute 
aggression.  Aggression  occurs  only  when  vitiation  by  one, 
or  some,  has  to  be  borne  by  others  who  do  not  take  like 
shares  in  the  vitiation ;  as  often  happens  in  railway-carriages, 
where  men  who  think  themselves  gentlemen  smoke  in 
other  places  than  those  provided  for  smokers :  perhaps 
getting  from  fellow-passengers  a  nominal,  though  not  a  real, 
consent,  and  careless  of  the  permanent  nuisance  entailed 
on  those  who  afterwards  travel  in  compartments  reeking 
with  stale  tobacco-smoke.  Beyond  the  recognition  of  this 
by  right-thinking  persons  as  morally  improper,  it  is  for- 
bidden as  improper  by  railway-regulations  ;  and,  in  virtue 
of  bye-laws,  may  bring  punishment  by  fine. 
!_  Passing  from  instances  of  this  kind  to  instances  of  a 
graver  kind,  we  have  to  note  the  interdicts  against  various 
nuisances — stenches  resulting  from  certain  businesses 
carried  on  near  at  hand,  injurious  fumes  such  as  those  from 
chemical  works,  and  smoke  proceeding  from  large  chimneys. 
Legislation  which  forbids  the  acts  causing  such  nuisances, 
implies  the  right  of  each  citizen  to  unpolluted  air. 

Under  this  same  head  we  may  conveniently  include 
another  kind  of  trespass  to  which  the  surrounding  medium 
is  instrumental.  I  refer  to  the  production  of  sounds  of  a 
disturbing  kind.  There  are  smrdl  and  large  trespasses  of 
this  class.  For  one  who,  at  a  table  d'hote,  speaks  so  loudly 
as  to  interfere  with  the  conversation  of  others,  and  for 
ihose  who,  during  the  performance  at  a  theatre  or  concert, 


84  JUSTICE. 

persist  in  distracting  tlie  attention  of  auditors  around  by 
talking,  there  is  reprobation,  if  notliing  more :  their  acts 
are  condemned  as  contrary  to  good  manners,  that  is,  good 
morals,  for  the  one  is  a  part  of  the  other.  And  then  when 
inflictions  of  this  kind  are  public,  or  continuous,  or  both — as 
in  the  case  of  street-music  and  especially  bad  street-music, 
or  as  in  the  case  of  loud  noises  proceeding  from  factories, 
or  as  in  the  case  of  church-bells  rung  at  early  hours,  the 
aggression  has  come  to  be  legally  recognized  as  such  aud 
forbidden  under  penalty :  not  as  yet  sufficiently  recognized, 
however,  as  is  shown  in  the  case  of  railway-whistles  at 
central  stations,  which  are  allowed  superfluously  to  disturb 
tens  of  thousands  of  people  all  through  the  night,  and  often 
to  do  serious  injury  to  invalids. 

Thus  in  respect  of  the  uses  of  the  atmosphere,  the  liberty 
of  each  limited  only  by  the  like  liberties  of  all,  though  not 
overtly  asserted,  has  come  to  be  tacitly  asserted ;  in  large 
measure  ethically,  and  in  a  considerable  degree  legally. 

§  52.  The  state  of  things  brought  about  by  civilization 
does  not  hinder  ready  acceptance  of  the  corollaries  thus 
far  drawn;  but  rather  clears  the  way  for  acceptance  of 
them.  Though  in  the  days  when  cannibalism  was  common 
and  victims  were  frequently  sacrificed  to  the  gods,  assertion 
of  the  right  to  life  might  have  been  received  with  demur, 
yet  the  ideas  and  pi-actices  of  those  days  have  left  no  such 
results  as  stand  in  the  way  of  unbiassed  judgments.  Though 
during  times  when  slavei'y  and  serfdom  were  deeply  orga- 
nized in  the  social  fabric,  an  assertion  of  the  right  to  liberty 
would  have  roused  violent  opposition,  yet  at  the  present 
time,  among  ourselves  at  least,  there  exists  no  idea,  senti- 
ment, or  usage,  at  variance  with  the  conclusion  that  each 
man  is  free  to  use  his  limbs  and  move  about  where  he 
pleases.  And  similarly  with  respect  to  the  environment. 
Such  small  interferences  with  others'  supplies  of  light  and 
air  as  have  been  bequeathed  in  the  structures  of  old  towns 


THE    RICUTS    70    THE    USES    OF    NATURAL    MKDIA.  85 

and  such  others  as  smoking  fires  entail,  do  not  appreciably 
hinder  acceptance  of  the  proposition  that  men  have  equal 
claims  to  uses  of  the  media  in  which  all  are  immersed. 
But  the  proposition  that  men  have  equal  claims  to  the  use 
of  that  remaining  portion  of  the  environment — hardly  to 
be  called  a  medium — on  which  all  stand  and  by  the  products 
of  which  all  live,  is  antagonized  by  ideas  and  arrangements 
descending  to  us  from  the  past.  These  ideas  and  arrange- 
ments arose  when  considerations  of  equity  did  not  affect 
land-tenure  any  more  than  they  affected  the  tenure  of  men 
as  slaves  or  serfs ;  and  they  now  make  acceptance  of  the 
proposition  difficult.  If,  while  possessing  those  ethical 
sentiments  which  social  discipline  has  now  produced,  men 
stood  in  possession  of  a  territory  not  yet  individually  por- 
tioned out,  they  would  no  more  hesitate  to  assert  equality 
of  their  claims  to  the  land  than  they  would  hesitate  to 
assert  equality  of  their  claims  to  light  and  air.  But  now 
that  long-standing  appropriation,  continued  culture,  as  well 
as  sales  and  purchases,  have  complicated  matters,  the 
dictum  of  absolute  ethics,  incongruous  with  the  state  of 
thiugs  produced,  is  apt  to  be  denied  altogether.  Before 
asking  how,  under  these  cii'cumstances,  we  must  decide,  let 
us  glance  at  some  past  phases  of  land-tenure. 

Partly  because  in  early  stages  of  agriculture,  land, 
soon  exhausted,  soon  ceases  to  be  worth  occupying,  it  has 
been  the  custom  with  little-civilized  and  semi-civilized 
peoples,  for  individuals  to  abandon  after  a  time  the  tracts 
they  have  cleared,  and  to  clear  others.  Causes  aside, 
however,  the  fact  is  that  in  early  stages  private  ownership 
of  land  is  unknown :  only  the  usufruct  belongs  to  the 
cultivator,  while  the  land  itself  is  tacitly  regarded  as  the 
property  of  the  tribe.  It  is  thus  now  with  the  Sumatrans 
and  others,  and  it  was  thus  with  our  own  ancestors :  the 
members  of  the  Mark,  while  they  sevei-ally  owned  the  pro- 
ducts of  the  areas  they  respectively  cultivated,  did  not  own 
the  areas  themselves.     Though  it  may  be  said  that  at  first 


86  JUSTICE. 

they  were  members  of  the  same  family,  gens,  or  clau,  and 
that  the  ownership  of  each  tract  was  private  ownership  in  so 
far  as  the  tract  belonged  to  a  cluster  of  relations ;  yet  since 
the  same  kind  of  tenure  continued  after  the  population  of 
the  Mark  had  come  to  include  men  who  were  unrelated  to 
the  rest,  ownership  of  the  tract  by  the  community  and  not 
by  individuals  became  an  established  arrangement.  This 
primitive  condition  will  be  clearly  understood  after  con- 
templating the  case  of  the  Russians,  among  whom  it  has 
but  partially  passed  away. 

"  The  village  lands  were  held  in  common  by  all  the  members  of  the 
association  \_mir] ;  the  individual  only  possessed  his  harvest,  and  the  dvor 
or  enclosure  immediately  surrounding  his  house.  This  primitive  condition 
of  property,  existing  in  Russia  up  to  the  present  day,  was  once  common  to 
all  European  peoples." — (The  History  of  Eussia,  A.  Eambaud,  trans,  by 
Lang,  vol.  i.  p.  45). 

With  this  let  me  join  a  number  of  extracts  from  Wallace's 
Russia,  telling  us  of  the  original  state  of  things  and  of  the 
subsequent  states.  After  noting  the  fact  that  while  the  Don 
Cossacks  were  purely  nomadic — "  agriculture  was  prohibited 
on  pain  of  death/'  apparently  because  it  interfered  with 
hunting  and  cattle-breeding,  he  says — 

"  Each  Cossack  who  wished  to  raise  a  crop  ploughed  and  sowed  wherever 
he  thought  fit,  and  retained  as  long  as  he  chose  the  land  thus  appropriated  ; 
and  when  the  soil  began  to  show  signs  of  exhaustion,  he  abandoned  his  plot 
and  ploughed  elsewhere.  As  the  number  of  agriculturists  increased,  quarrels 
frequently  arose.  Still  worse  evils  appeared  when  markets  were  created  in 
the  vicinity.  In  some  stanitzas  [Cossack  villages]  the  richer  families 
appropriated  enormous  quantities  of  the  common  land  by  using  several  teams 
of  oxen,  or  by  hiring  peasants  in  the  nearest  villages  to  come  and  plough  for 
them  ;  and  instead  of  abandoning  the  land  after  raising  two  or  three  crops 
they  retained  possession  of  it.  Thus  the  whole  of  the  arable  land,  or  at 
least  the  best  parts  of  it,  became  actually,  if  not  legally,  the  private  property 
of  a  few  families." — llh.  ii.  8G.) 

Then  he  explains  thnt  as  a  consequence  of  something  like  a 
revolution — 

"In  accordance  with  their  [the  landless  members  of  the  community's] 
demands  the  appropriated  land  was  confiscated  by  the  Commune  and  the 
systemof  periodical  distributions  .  .  .  was  introduced.  By  this  system  each 
adult  male  possesses  a  share  of  the  land." — {lb.  ii.  87.) 

On  the  Steppes  "a  plot  of  land  is  commonly  cultivated  for  only  three  or 


THE    EIGHTS    TO    THE    USES    OP   NATURAL   MEDIA.  87 

four  years  in  succession.  It  is  then  abandoned  for  at  least  double  that 
period,  and  the  cultivators  remove  to  some  other  portion  of  the  communal 
territory  .  .  .  Under  such  circumstances  the  principle  of  private  property  in 
the  land  is  not  likely  to  strike  root ;  each  family  insists  on  possessing 
a  certain  quantity  rather  than  a  certain  plot  of  land,  and  contents  itself  with 
a  right  of  usufruct,  whilst  the  right  of  property  remains  in  the  hands  of  the 
Commune." — {Ih.  ii.  91.) 

But  in  the  central  and  more  advanced  districts  tliis  early 
practice  has  become  modified,  though  without  destroying 
the  essential  character  of  the  tenure. 

"  According  to  this  system  [the  three-field  system]  the  cultivators  do  not 
migrate  periodically  from  one  part  of  the  communal  territory  to  another, 
but  till  always  the  same  fields,  and  are  obliged  to  manure  the  plots  which 
they  occupy.  .  .  .  Though  the  three-field  system  has  been  in  use  for  many 
generations  in  the  central  provinces,  the  communal  principle,  with  its 
periodical  re-allotment  of  the  land,  still  remains  intact." — [Ih.  ii.  92.) 

Such  factSj  and  numerous  other  such  facts,  put  beyond 
question  the  conclusion  that  before  the  progress  of  social 
organization  changed  the  relations  of  individuals  to  the 
soil,  that  relation  was  one  of  joint  ownership  and  not  one  of 
individual  ownership. 

How  was  this  relation  changed  ?  How  only  could  it  be 
changed?  Certainly  not  by  unforced  consent.  It  cannot 
be  supposed  that  all,  or  some,  of  the  members  of  the 
community  willingly  surrendered  their  respective  claims. 
Crime  now  and  again  caused  loss  of  an  individual's  share 
in  the  joint  ownership ;  but  this  must  have  left  the 
relations  of  the  rest  to  the  soil  unchanged.  A  kindred  result 
might  have  been  entailed  by  debt,  were  it  not  that  debt 
implies  a  creditor ;  and  while  it  is  scarcely  supposable  that 
the  creditor  could  be  the  community  as  a  whole,  indebtedness 
to  any  individual  of  it  would  not  empower  the  debtor  to  trans- 
fer in  payment  something  of  which  he  was  not  individually 
possessed,  and  which  could  not  be  individually  received. 
Probably  elsewhere  there  came  into  play  the  cause  described 
as  having  operated  in  Russia,  where  some,  cultivating 
larger  areas  than  others,  accumulated  wealth  and  con- 
sequent power,  and  extra  possessions ;  but,  as  is  implied 
by  the  fact  that  in  Russia  this  led  to  a  revolution   and 


88  JUSTICE. 

re-institution  of  tlie  original  state,  the  process  was  evidently 
there,  and  probably  elsewhere,  regarded  as  aggressive. 
Obviously  the  chief  cause  must  have  been  the  exercise  of 
direct  or  indirect  force  :  sometimes  internal  but  chiefly 
external.  Disputes  and  fights  within  the  community, 
leading  to  predominance  (achieved  in  some  cases  by 
possession  of  fortified  houses)  prepared  the  way  for  partial 
usurpations.  When,  as  among  the  Suanetians,  we  have  a 
still-extant  case  in  which  every  family  in  a  village  has  its 
tower  of  defence,  we  may  well  understand  how  the  intestine 
feuds  in  early  communities  commonly  brought  about 
individual  supremacies,  and  how  these  ended  in  the 
establishment  of  special  claims  upon  the  land  subordinating 
the  general  claims. 

But  conquest  from  without  has  everywhere  been  chiefly 
instrvimental  in  superseding  communal  proprietorship  by 
individual  proprietorship.  It  is  not  to  be  supposed  that  in 
times  when  captive  men  were  made  slaves  and  women 
appropriated  as  spoils  of  war,  much  respect  was  paid  to 
pre-existing  ownership  of  the  soil.  The  old  English 
buccaneers  who,  in  their  descents  on  the  coast,  slew  priests 
at  the  altars,  set  fire  to  churches,  and  massacred  the  people 
who  had  taken  refuge  in  them,  would  have  been  very 
incomprehensible  beings  had  they  recognized  the  land- 
ownership  of  such  as  t^urvived.  When  the  pirate  Danes, 
who  in  later  days  ascended  the  rivers,  had  burnt  the 
homesteads  they  came  npon,  slaughtered  the  men,  violated 
the  women,  tossed  children  on  pikes  or  sold  them  in  the 
market  place,  they  must  have  undergone  a  miraculous 
transformation  had  they  thereafter  inquired  to  whom  the 
Marks  belonged,  and  admitted  the  titles  of  their  victims 
to  them.  And  similarly  when,  two  centuries  later,  after 
constant  internal  wars  had  already  produced  military  rulers 
maintaining  quasi-feudal  claims  over  occupiers  of  lands, 
there  came  the  invading  Normans,  the  right  of  conquest 
once  more  overrode  such  kinds  of  possession  as  had  grown 


THE    EIGHTS    TO    THE    USES    OF   NATURAL   MEDIA.  89 

np,  and  still  further  merged  communal  proprietorsliip  in 
tltat  kind  of  individual  proprietorsliip  whicli  characterized 
feudalism.  Victory,  whicli  gives  unqualified  power  over  the 
defeated  and  their  belongings,  is  followed,  according  to  tlio 
nature  of  the  race,  by  the  assertion  of  universal  ownership, 
more  or  less  qualified  according  to  the  dictates  of  policy. 
"While  in  some  cases,  as  in  Dahomey,  there  results  absolute 
monopoly  by  tlie  king,  not  only  of  the  land  but  of  every- 
thing else,  there  results  in  other  cases,  as  there  resulted  in 
England,  supreme  ownership  by  the  king  w^ith  recognized 
sub-ownerships  and  sub-sub-ownerships  of  nobles  and  their 
vassals  holding  the  land  one  under  another,  on  condition 
of  militaiy  service :  supreme  ownership  being,  by  implica- 
tion, vested  in  the  crown. 

Both  the  original  state  and  the  subsequent  states  have 
left  their  traces  in  existing  land-laws.  There  are  many  local 
rights  whicli  date  from  a  time  when  "  private  property  in 
land,  as  we  now  understand  it,  was  a  strug'gling  novelty.""^ 

"  The  people  who  exercise  rights  of  common  exercise  them  by  a  title 
which,  if  we  could  only  trace  it  all  the  way  back,  is  far  more  ancient  than 
the  lord's.  Their  rights  are  those  which  belonged  to  the  members  of 
the  village  community  long  before  manors  and  lords  of  the  manor  were 
heard  of."f 

And  anyone  who  observes  what  small  tenderness  for  the 
rights  of  commoners  is  shown  in  the  obtainment  of 
Inclosure-Acts,  even  in  our  own  day,  will  be  credulous 
indeed  if  he  thinks  that  in  ruder  times  the  lapse  of  com- 
munal rights  into  private  rights  was  equitably  effected. 
The  private  ownership,  however,  was  habitually  incomplete; 
since  it  "was  subject  to  the  claims  of  the  over-lord,  and 
through  him,  again,  to  those  of  the  over-over-lord :  the 
implication  being  that  the  ownership  was  subordinate  to 
that  of  the  head  of  the  community. 

^'"  No  absolute  ownership  of  land  is  recognized  by  our  law-books  except  in 
the  Crown.    All  lands  are  supposed  to  be  held,  immediately,  or  mediately, 

•  The  Land  Laws,  by  Sir  Fredk.  Pollock,  Bart.,  p.  2.  f  li'id.,  p.  0. 

5 


90  JUSTICE. 

of  the  Crown,  though  no  rent  or  services  may  be  payable,  and  no  grant  from 
the  Crown  on  record."* 

And  that  tliis  conception  of  land-ownership  survives,  alike 
in  theory  and  in  practice,  to  the  present  time,  is  illustrated 
by  the  fact  that  year  by  year  State-authority  is  given  for 
appropriating  land  for  public  purposes,  after  making  due 
compensation  to  existing  holders.  Though  it  may  be 
replied  that  this  claim  of  the  State  to  supreme  land-owner- 
ship is  but  a  part  of  its  claim  to  supreme  ownership  in 
general,  since  it  assumes  the  right  to  take  anything  on 
giving  compensation  ;  yet  the  first  is  an  habitually-enforced 
claim,  while  the  other  is  but  a  nominal  claim  not  enforced ; 
as  we  see  in  the  purchase  of  pictures  for  the  nation,  to  effect 
which  the  State  enters  into  competition  with  private  buyers, . 
and  may  or  may  not  succeed.  ' 

It  remains  only  to  point  out  that  the  political  changes 
which  have  slowly  replaced  the  supreme  power  of  the 
monarch  by  the  supreme  power  of  the  people,  have,  by 
implication,  replaced  the  monarch's  supreme  ownership  of 
the  land  by  the  people's  supreme  ownership  of  the  land. 
If  the  representative  body  has  practically  inherited  the 
governmental  powers  which  in  past  times  vested  in  the- 
king,  it  has  at  the  same  time  inherited  that  ultimate 
proprietorship  of  the  soil  which  in  past  times  vested  in  him. 
And  since  the  representative  body  is  but  the  agent  of  thej 
community,  this  ultimate  proprietorship  now  vests  in  th^i 
community.  Nor  is  this  denied  by  land-owners  themselves 
The  report  issued  in  December,  1889,  by  the  council  o:^ 
"  The  Liberty  and  Property  Defence  League,"  on  whiclj 
sit  several  Peers  and  two  judges,  yields  proof.  Afte:; 
saying  that  the  essential  principle  of  their  organization 
''based  upon  recorded  experience,"  is  a  distrust  o 
"  ofl&cialism,  imperial  or  municipal,"  the  council  go  oi 
to  say  that — 

"  This  principle  applied  to  the  case  of  land  clearly  points  to  individus 

•  The  Land  Laws,  by  Sir  Fredk.  Pollock,  Bart.,  p.  12. 


THE    EIGHTS    TO   THE    USES    OP  NATURAL   MEDIA.  91 

ownership,  qualified  by  State-suzerainty.  .  .  .  The  land  can  of  course 
be  'resumed'  on  payment  of  full  compensation,  and  managed  by  the 
•people  '  if  they  so  will  it." 

And  the  badness  of  the  required  sj'stcm  of  administration  is 
the  only  reason  urged  for  maintaining  the  existing  system  of 
land-holding:  the  supreme  ownership  of  the  community  being 
avowedly  recognized.  So  that  whereas,  in  eax'ly  stages, 
along  with  the  freedom  of  each  man,  there  went  joint 
ownership  of  the  soil  by  the  body  of  men ;  and  whereas, 
during  the  long  periods  of  that  militant  activity  by  which 
small  communities  were  consolidated  into  great  ones,  there 
simultaneously  resulted  loss  of  individual  freedom  and  loss 
of  participation  in  land-ownership ;  there  has,  with  the 
decline  of  militancy  and  the  growth  of  industrialism,  been 
a  re-acquirement  of  individual  freedom  and  a  re-acquire- 
ment of  such  participation  in  land-ownership  as  is  implied 
by  a  share  in  appointing  the  body  by  which  the  land  is 
now  held.  And  the  implication  is  that  the  members  of 
the  community,  habitually  exercising  as  they  do,  through 
their  representatives,  the  power  of  alienating  and  using  as 
they  think  well,  any  portion  of  the  land,  may  equitably 
appropriate  and  use,  if  they  think  fit,  all  portions  of  the 
land.  But  since  equity  and  daily  custom  alike  imply  that 
existing  holders  of  particular  jDortions  of  land,  may  not 
be  dispossessed  without  giving  them  in  return  its  fairly- 
estimated  value,  it  is  also  implied  that  the  wholesale 
resumption  of  the  land  by  the  community  can  be  justly 
effected  only  by  wholesale  purchase  of  it.  Were  the 
direct  exercise  of  ownership  to  be  resumed  by  the  com- 
munity without  purchase,  the  community  would  take, 
along  with  something  which  is  its  own,  an  immensely 
greater  amount  of  something  which  is  not  its  own.  Even 
if  we  ignore  those  multitudinous  complications  which,  in 
the  course  of  century  after  century,  have  inextricably 
entangled  men's  claims,  theoretically  considered — even  if 
we  reduce  the  case  to  its  simplest  theoretical  form  ;  we 
must  admit  that  all  which  can  be  claimed  for  the  community 


92  JUSTICE. 

is  tlie  surface  of  tte  country  in  its  original  unsubdued  state. 
To  all  that  value  given  to  it  by  clearing,  breaking-up, 
prolonged  culture,  fencing,  draining,  making  roads,  farm 
buildings,  &c.,  constituting  nearly  all  its  value,  tbe  com- 
munity has  no  claim.  Tbis  value  bas  been  given  either 
by  personal  labour,  or  by  labour  paid  for,  or  by  ancestral 
labour  ;  or  else  the  value  given  to  it  in  suck  ways  has  been 
purchased  by  legitimately  earned  money.  All  this  value 
artificially  given  vests  in  existing  owners,  and  cannot  with- 
out a  gigantic  robbery  be  taken  from  them.  If,  during 
the  many  transactions  which  have  brought  about  existing 
land-ownership,  there  have  been  much  violence  and  much 
fraud,  these  have  been  small  compared  with  the  violence  and 
the  fraud  which  the  community  would  be  guilty  of  did  it 
take  possession,  without  paying  for  it,  of  that  artificial 
value  which  the  labour  of  nearly  two  thousand  years 
has  given  to  the  land. 

§  53.  Eeverting  to  the  general  topic  of  the  chapter — 
the  rights  to  the  uses  of  natural  media — it  chiefly  concerns 
us  here  to  note  the  way  in  which  these  rights  have  gradually 
acquired  legislative  sanctions  as  societies  have  advanced  to 
higher  types. 

At  the  beginning  of  the  chapter  we  saw  that  in  modern 
times  there  have  arisen  legal  assertions  of  men's  equal 
rights  to  the  uses  of  light  and  air :  no  forms  of  social 
organization  or  class-interests  having  appreciably  hindered 
recognition  of  these  corollaries  from  the  law  of  equal 
freedom.  And  we  have  just  seen  that  by  implication,  if 
not  in  any  overt  or  conscious  way,  there  has  in  our  days 
been  recognized  the  equal  rights  of  all  electors  to  supreme 
ownership  of  the  inhabited  area — rights  which,  though 
latent,  are  asserted  by  every  Act  of  Parliament  which 
alienates  land.  Though  this  right  to  the  use  of  the  Earth, 
possessed  by  each  citizen,  is  traversed  by  establishec 
arrangements    to  so  great  an  extent  as  to   be  practicallx 


THE    EIGHTS   TO    THE    USES   OF   NATURAL   MEDIA.  93 

suspended;  yet  its  existence  as  an  equitable  claim  cannot 
be  denied  -witbout  affirming  tbat  expropriation  by  State- 
decree  is  inequitable.  The  right  of  an  existing  holder  of 
land  can  be  equitably  superseded,  only  if  there  exists  a 
prior  right  of  the  community  at  large ;  and  this  prior 
right  of  the  community  at  large  consists  of  the  sum  of 
the  individual  riofhts  of  its  members. 


Note.  Various  considerations  touching  this  vexed 
question  of  land-ownership,  which  would  occupy  too  much 
space  if  included  here,  I  have  included  in  Appendix  B. 


CHAPTER  XIL 

THE  EIGHT   OF  PEOPEETY. 

§  54.  Since  all  material  objects  capable  of  being  owned, 
are  in  one  way  or  otlier  obtained  from  the  Earth,  it  results 
that  the  right  of  property  is  originally  dependent  on  the 
right  to  the  use  of  the  Earth.  While  there  were  yet  no 
artificial  products,  and  natural  products  were  therefore 
the  only  things  which  could  be  appropriated,  this  was  au 
obviously  necessary  connexion.  And  though,  in  our 
developed  form  of  society,  there  are  multitudinous  posses- 
sions, ranging  from  houses,  furniture,  clothes,  works  of 
art,  to  bank-notes,  railway-shares,  mortgages,  government 
bonds,  &c.,  the  origins  of  ^\hich  have  no  manifest  relation 
to  use  of  the  Earth ;  yet  it  needs  but  to  remember 
that  they  either  are,  or  represent,  products  of  labour,  that 
labour  is  made  possible  by  food,  and  that  food  is  obtained 
from  the  soil,  to  see  that  the  connexion,  though  remote 
and  entangled,  still  continues.  Whence  it  follows  that  a 
complete  ethical  justification  for  the  right  of  property,  is 
involved  in  the  same  diflficulties  as  the  ethical  justification 
for  the  right  to  the  use  of  the  Earth. 

The  justification  attempted  by  Locke  is  unsatisfactory. 
Saying  that  "  though  the  Earth  and  all  inferior  creatures 
be  common  to  all  men,  yet  every  man  has  a  property  in 
his  own  person,''  and  inferring  that  "  the  labour  of  his 
body,  and  the  work  of  his  hands,"  are  therefore  his,  he 
continues  : — ''Whatever  then  he  removes  out  of  the  state 


THE    RianT   OP    PROPERTY.  95 

that  nature  hath  provided  and  left  it  in,  he  hath  mixed  his 
labour  with,  and  joined  to  it  something  that  is  his  own,  and 
thereby  makes  it  his  property."  But  one  might  reply 
that  as,  according  to  the  premises,  "  the  Earth  and  all 
inferior  creatures  "  are  "  common  to  all  men,"  the  consent 
of  all  men  must  be  obtained  before  any  article  can  be  equit- 
ably "  removed  from  the  common  state  nature  hath  placed 
it  in."  The  question  at  issue  is,  whether  by  labour  expended 
in  removing  it,  a  man  has  made  his  right  to  the  thing 
greater  than  the  pre-existing  rights  of  all  other  men  put 
together.  The  difficulty  thus  arising  may  be  avoided 
however.  There  are  three  ways  in  which,  under  savage, 
semi-civilized,  and  civilized  conditions,  men's  sevei'al  rights 
of  property  may  be  established  with  due  regard  to  the  equal 
rights  of  all  other  men. 

^ Among  the  occupiers  of  a  tract  who  gather  or  catch  the- 
wild  products  around,  it  may  be  tacitly,  if  not  overtly, 
agreed  that  having  equal  opportunities  of  utiliziiig  such 
products,  appropriation  achieved  by  any  one  shall  be 
passively  assented  to  by  the  others.  This  is  the  general 
understanding  acted  upon  by  the  members  of  hunting 
tribes.  It  is  instructive  to  observe,  however,  that  among 
some  of  them  there  is  practically,  if  not  theoretically, 
asserted  the  qualification  indicated  above ;  for  usage 
countenances  a  partial  claim  by  other  tribes-men  to  game 
which  one  of  the  tribe  has  killed  :  apparently  implying  the 
belief  that  this  prey  was  in  part  theirs  before  it  was  killed, 
Schoolcraft  tells  us  concerning  the  Comanches  that — 

"  They  recognize  no  distinct  rights  of  meum  and  tuum,  except  to  personal 
property ;  holding  the  territory  they  occupy,  and  the  game  that  depastures 
upon  it,  as  common  to  all  the  tribe :  the  latter  is  appropriated  only  by 
capture.  ...  He  who  kills  the  game  retains  the  skin,  and  the  meat  is 
divided  according  to  the  necessity  of  the  party,  always  without  contention, 
each  individual  shares  his  food  with  every  member  of  the  tribe." 

Kindred  usages  and  ideas  are  found  among  the  Cliippe- 
wayans.     Schoolcraft  writes  : — 
"  In  the  former  instance  [when  game  is  taken  in  inclosures  by  a  hunting 


96  jtrsTiCE. 

party],  the  game  is  divided  among  those  who  have  been  engaged  in  pursuit 
of  it.  In  the  latter  [when  taken  in  private  traps]  it  is  considered  as  private 
property:  nevertheless,  any  unsuccessful  hunter  passing  by,  may  take  a 
deer  so  caught,  leaving  the  head,  skin,  and  saddle  for  the  owner." 

The  quasi-equitable  nature  of  tliese  several  arrangements, 
vaguely,  if  not  definitely,  regarded  as  right,  will  be  fully 
appreciated  by  any  one  who  is  joint  tenant  of  a  fishing, 
or  is  privileged  along  with  other  guests  to  utilize  one,  and 
who  is  conscious  of  annoyance  if  a  co-tenant,  or  companion 
guest,  makes  undue  use  of  it :  a  feeling  which  would  be  still 
stronger  were  an  unfair  share  of  food  appropriated  as  well 
as  an  unfair  share  of  sport. 

Passing  from  the  hunting  stage  to  the  semi-settled  stage, 
we  meet  with  usages  having  the  same  general  implications. 
The  occupied  area,  instead  of  being  equally  available  by  all 
for  gathering  and  catching  the  food  it  spontaneously  yields, 
becomes  equally  available  by  all  for  growing  iood ;  and  the 
products  of  labour  in  the  last  case,  like  the  achievements 
of  labour  in  the  first,  are  owned  by  those  who  expend  the 
labour.  It  is  perceived  that  the  assent  of  the  clan  to 
ownership  of  food  grown  on  an  appropriated  portion  by 
any  one,  is  implied  in  the  assumptions  of  kindred  owner- 
ships, similarly  established,  by  all  others.  As  shown  by  the 
Eussian  tenures  described  in  the  last  chapter,  the  indefinite 
understanding  thus  arising,  passes  eventually  info  a  definite 
understanding  :  there  is  a  pa;rtition  of  tlie  'land  into  equal 
portions;  a  farming  of  each  portion  by  its  appointed 
owner;  and  a  recognition  of  the  produce  as  his  property. 
A  kindred  understanding  existed  among  the  Irish  in  the 
time  of  Henry  II.  and  later.  "  The  land  belonging  to  the 
tribe  was  shared  among  its  members,  but  re-dividtd  among 
them  at  certain  intervals  of  years  "  :  the  implication  being 
that,  by  general  agreement,  whatever  the  individual 
obtained  from  the  land  by  his  labour  under  these  con- 
ditions was  exclusively  his.  In  this  case  then,  as  in  the 
first,  the  right  of  propei'ty  arises  in  conformity  with  tho 
law  of  equal  freedom. 


THE    EIGHT    OP    PKOPEETT.  97 

Tliougli  we  cannot  say  that  ownership  of  propert)'',  thus 
arising,  results  from  actual  contract  between  each  member 
of  the  community  and  the  community  as  a  whole,  yet  there 
is  something  like  a  potential  contract;  and  such  potential 
contract  might  grow  into  an  actual  contract  if  one  part  of 
the  community  devoted  itself  to  other  occupations,  while 
the  rest  continued  to  farm :  a  share  of  the  produce  being  in 
such  case  payable  by  agreement  to  those  who  had  ceased  to 
be  farmers,  for  the  use  of  their  shares  of  the  land.  We  have 
no  evidence  that  such  a  relation  between  occupiers  and  the 
community,  with  consequent  authorized  rights-  of  property 
in  the  produce  which  remained  after  payment  of  a  portion 
equivalent  to  rent,  has  ever  arisen ;  for,  as  we  have  seen, 
the  original  ownership  by  the  community  has  habitually 
been  usurped  by  internal  or  external  aggressois,  and  the 
rent,  taking  the  shape,  if  not  of  produce,  then  of  labour  or 
military  servicOj  has  been  habitually  paid  to  the  usurper . 
a  state  of  tilings  under  which  equitable  rights  of  property, 
in  common  with  equitable  rights  of  all  kinds,  are  submerged. 
^But  out  of  such  usurpations  there  has  grown  up,  as  we 
have  seen,  ownership  by  the  State  and  tenancy  under  it; 
from  which  there  may  again  arise  a  theoretically  equitable 
right  of  property.  In  China,  where  "the  land  is  all  held 
directly  from  the  Crown ^^  ''on  payment  of  an  annual  tax," 
with  "composition  for  personal  service  to  the  government," 
the  legitimate  proprietorship  of  such  produce  as  remains 
after  payment  of  rent  to  the  community,  can  be  asserted 
only  on  the  assumption  that  the  emperor  stands  for  the 
community.  In  India, .where  the  government  is  supreme 
land-owner,  and  where,  until  the  zemindar  system 
was  established,,  it  was  the  direct  receiver  of  rents,  the 
derivation  of  a  right  of  property  by  contract  between  the 
individual  and  the  community  can  be  still  less  asserted 
without  a  strained  interpretation.  Nor  at  home,  where  the 
theory  that  each  land-owner  is  a  tenant  of  the  crown  is  little 
more  than  a  theory,  is  there  any  better  fulfilment  of  the 


98  JUSTICE. 

ethical  requirement.  Only  liere  and  tlierej  "vvliere  State- 
ownership  is  not  potential  but  actual,  and  ordinary^ 
rents  are  paid  by  occupiers  to  the  crown  (which  has  now 
in  such  cases  come  to  be  identified  with  the  community), 
has  there  been  consequeutly  established  that  kind  of  use 
of  the  Earth  which  gives  a  theoretically  valid  basis  to  the 
right  of  private  property. 
^  But  admitting  that  the  establishment  of  an  ethically- 
complete  right  of  property  is  beset  with  difficulties  like 
those  which  beset  the  establishment  of  an  ethically-complete 
right  to  the  use  of  the  Earth,  we  are  nevertheless  shown  by 
a  survey  of  the  facts  which  existing  primitive  societies 
present,  and  the  facts  traceable  in  the  early  histories  of 
civilized  societies,  that  the  right  of  property  is  originally 
deducible  from  the  law  of  equal  freedom;  and  that  it  ceases 
to  be  so  deducible  only  when  the  other  corollaries  from  the 
law  of  equal  freedom  have  been  disregarded. 

§  55.  This  deduction,  early  recognized  in  custom  and 
afterwards  formulated  by  legislators,  has  come  to  be 
elaborated  and  enforced  more  and  more  fully  as  society 
has  developed. 

That  the  right  of  property  was  originally  conceived  as  a 
claim  estabhshed  by  labour  which  was  carried  on  without  ag- 
gressing on  others,  is  seen  in  the  fact  that  among  the  rudest 
peoples,  who  have  developed  the  conception  to  the  smallest 
extent,  there  is  property  in  weapons,  implements,  dress  and 
1    decorations — things   in  which   the  value  given  by  labour 
'  '  bears  a  specially  large  ratio  to  the  value  of  the  raw  material. 
V'  When  with  such  articles  we  join  huts,  which,  however,  being 
commonly  made  by  the  help  of   fellow   men  who  receive 
reciprocal  aid,  are  thus  less  distinctly  products  of  an  indi- 
vidual's  labour,  we  have  named  about  all  the  things  in 
which,    at   first,    the    worth    given   by   effort   is   great   in 
comparison   with   the   inherent   worth ;    for   the   inherent 
worth  of  the  wild  food  gathered  or  caught  is  more  obvious 


THE    RIGHT    OP    PROPERTY.  99 

than  the  worth  of  the  effort  spent  in  obtaining  it.  And 
this  is  doubtless  the  reason  why,  in  the  rudest  societies,  tho 
right  of  property  is  more  definite  in  respect  of  personal 
belongings  than  in  respect  of  other  things. 

That  recognition  of  the  right  of  property  is  originally 
recognition  of  the  relation  between  effort  and  benefit,  is, 
at  a  later  stage,  shown  in  the  regime  of  the  patriarchal 
group  and  the  house-community;  for  though,  as  Sir  Henry 
Maine  points  out,  the  head  of  the  group  was  at  first 
nominally  owner  of  all  its  possessions,  yet,  in  fact,  he  held 
its  possessions  in  trust,  and  each  of  its  members,  while  he 
did  his  share  in  the  carrying  on  of  the  joint  labours,  had  his 
share  in  the  proceeds.  Though  this  arrangement — quasi- 
socialistic  within  the  group,  but  competitive  outside  the 
group — does  not  give  definite  expression  to  the  right  of 
individual  property,  it  tacitly  asserts  that  labour  must  bring 
to  the  labourer  somethilag  like  its  equivalent  in  produce. 
And  the  tacit  assertion  passes  into  an  overt  assertion  in 
those  cases  where  members  of  the  group  acquire  property 
in  virtue  of  labour  expended  by  them  apart  from  the  labours 
of  the  rest. 

To  trace  the  development  of  the  right  of  property  as 
established  by  rulers  and  administered  by  their  agents, 
setting  out  with  the  interdict  on  theft  in  the  Hebrew 
commandments,  and  continuing  down  to  modern  days,  in 
which  proprietorships  of  all  kinds  have  been  legally  formu- 
lated in  multitudinous  detail  and  with  great  precision,  would 
be  no  less  out  of  place  than  it  would  be  superfluous.  It 
sufiBces  for  present  purposes  to  note  that  this  implication  of 
the  principle  of  justice,  perceived  from  the  first  perhaps 
more  clearly  than  any  other,  has  gained  in  the  course  of 
social  progress  increased  definiteness  of  recognition  as  well 
as  increased  extension  and  increased  peremptoriness ;  so 
that  now,  breach  of  the  right  of  property  by  unauthorized 
appropriation  of  a  turnip  or  a  few  sticks,  has  become  a 


100  JUSTICE. 

punisliable  offence ;  and  tliere  is  ownership  of  a  song,  of  a 
pattern^  of  a  trade-mark. 

§  56.  Supposing  themselves  to  be  justified,  and  indeed 
enjoined  by  moral  principle,  many  in  our  days  are  seeking 
to  over-ride  this  right.  They  think  it  wrong  that  each  man 
should  receive  benefits  proportionate  to  his  efforts — deny 
that  he  may  properly  keep  possession  of  all  which  his 
labour  has  produced,  leaving  the  less  capable  in  possession 
of  all  which  their  labours  have  produced.  Expressed  in 
its  briefest  form,  their  doctrine  is — Let  unlike  kinds  and 
amounts  of  work  bring  like  shares  of  produce — let  there  be 
"equal  division  of  unequal  earnings," 
,  ,  That  communism  implies  violation  of  justice  as  defined 

///  in  foregoing  chapters,  is  manifest.  VWhen  we  assert  the 
'liberty  of  each  bounded  only  by  the  like  liberties  of  all,  we 
assert  that  each  is  free  to  keep  for  himself  all  those 
gratifications  and  sources  of  gratification  which  he  procures 
\  without  trespassing  on  the  spheres  of  action  of  his  neigh- 
Dours.  If,  therefore,  one  obtains  by  his  greater  strength, 
greater  ingenuity,  or  greater  application,  more  gratifications 
or  sources  of  gratification,  than  others,  and  does  this  without 
in  any  way  trenching  on  the  spheres  of  action  of  others,  the 
law  of  equal  freedom  assigns  him  exclusive  possession  of  all 
such  extra  gratifications  and  sources  of  gratification;  nor 
can  others  take  them  from  him  without  claiming  for 
themselves  greater  liberty  of  action  than  he  claims,  and 
thereby  violating  the  law. 

In  past  times  the  arrangements  made  were  such  that  the 
few  superior  profited  at  the  expense  of  the  many  inferior. 
It  is  now  proposed  to  make  arrangements  such  that  the 
many  inferior  shall  profit  at  the  expense  of  the  few  superior. 
lA.nd  just  as  the  old  social  system  was  assumed  by  those 
who  maintained  it  to  be  equitable,  so  is  this  new  social 
system  assumed  to  be  equitable  by  those  who  propose  it. 
Being,  as  they  think,  undoubtedly  right,  this  distribution 


THE    EIGHT    OF    PROrERTY.  101 

may  properly  be  establislied  by  force;  for  the  employment 
of  force,  if  not  avowedly  contemplated,  is  contemplated  by 
implication.  With  a  human  nature  such  as  has  been  knowu 
throughout  the  past  and  is  known  at  present,  one  who,  by 
higher  power,  bodily  or  mental,  or  greater  endurance  of 
work,  gains  more  than  others  gain,  will  not  voluntarily 
surrender  the  excess  to  such  others :  here  and  there  may 
be  founrf  a  man  who  would  do  this,  but  he  is  far  from  being 
the  average  man.  And  if  the  average  superior  man  will 
not  voluntarily  surrender  to  others  the  excess  of  benefit 
gained  b'y  his  superiority,  the  implication  is  that  he  must  be 
obliged  to  do  this,  and  that  the  use  of  force  to  oblige  him  is 
justifiable.  That  the  many  inferior  are  physically  able  thus 
to  coerce  the  few  superior  is  agreed  on  both  sides ;  but  the-^ 
assumption  oi  the  communists  is  that  the  required  coercion 
of  the  minority  who  are  best  by  the  majority  who  are  worst 
would  be  equitable. 

'  After  what  was  said  in  the  early  chapters  of  this  Part,  it 
scarcely  needs  pointing  out  that  a  system  established  in 
pursuance  of  this  doctrine  would  entail  degeneration  of 
citizens  and  decay  of  the  community  formed  by  them. 
Suspension  of  that  natural  discipline  by  which  every  kind 
of  creature,  is  kept  fit  for  the  activities  demanded  by  the 
conditions  of  life,  would  inevitably  bring  about  unfitness 
for  life  and  either  prompt  or  slow  disappearance. 

§  57.  While  absolute  ethics  thus  asserts  the  right  of 
property,  and  while  no  such  breach  of  it  as  is  implied  by 
the  schemes  of  communists  is  warranted  by  that  relative 
ethics  which  takesJ^  account  of  transitional  needs,  relative 
ethics  dictates  such  limitation  of  it  as  is  necessitated  for 
defraying  the  costs  of  protection,  national  and  individual. 

The  truth  recognized  at  the  outset,  that  the  preservation 
of  the  species,  or  that  variety  of  it  constituting  a  nation,  is 
an  end  which  must  take  precedence  of  individual  preserva- 
tion, has  already  been  cited  as  justifying  that  subordination 


102  JUSTICE. 

of  the  right  to  life  wliicli  is  implied  by  exposure  to  possible 
death  in  defensive  war,  and  as  also  justifying  that  sub- 
ordination of  tbe  right  to  liberty  which  military  service  and 
subjection  necessitate.  Here  it  must  be  again  cited  as 
affording  a  legitimate  reason  for  appropriating  such  portions 
of  the  possessions  and  the  earnings  of  individuals,  as  may 
be  required  for  adequately  resisting  enemies.  But  while 
there  is  thus  a  quasi-ethical  justification  for  whatever 
encroacbment  on  the  right  of  property  is  necessitated  for 
the  purposes  of  defensive  war,  there  is  no  justification  for 
any  such  encroachment  for  the  purposes  of  oifensive  war.    r" 

No   less   manifest   is   it   that    the  right    of  property  is 
legitimately   subject  to  one  further  restriction.     Property 
must  be  trenched  upon  for  supporting  those  public  admin- — "', 
istrations  by  which  the   right  of  property,  and  all  other      J 
rights,  are  enforced.     In  a  society  wholly  composed  of  men 
who  duly  respected  one  another's  claims,  no  such  partial 
invasion  of  the  right  of  property  would  be-  called  for ;  but 
in  existing  societies  and  in  such  societies  as  are  likely  to 
exist  for  a  long  time  to  come,  the  nearest  approach  to     j 
fulfilment  of  the  law  of  equal  freedom  is  made  when  the 
various  deduced  rights  are  sacrificed  to  the  extent  needful 
for  preservation  of  the  remainders.     Relative  ethics,  there- 
fore,  warrants    such   equitably-distributed   taxation   as   is 
required  for  maintaining  order  and  safety.      - 


CHAPTER  XIII. 

THE  EIGHT  OF  INCORPOBEAL  PEOPEETY. 

§  58.  Even  the  dog,  which  not  only  fights  to  retain  a 
bone  he  has  found  but  fights  also  to  preserve  the  coat  or 
other  object  left  in  his  charge  by  his  master,  can  recognize 
ownership  of  a  visible,  tangible  object;  and  hence  it  is 
clear  that  only  a  small  reach  of  intelligence  is  needed  for 
framing  in  thought  the  right  of  material  property.  But  a 
much  greater  reach  of  intelligence  is  called  for  when  the 
property  is  neither  visible  nor  tangible.  Constructive 
imagination  is  requisite  for  conceiving  the  existence  of  a 
mental  product ;  and  a  higher  constructive  imagination  is 
requisite  for  conceiving  that  a  product  of  mental  labour 
may  as  truly  be  considered  property  as  a  product  of 
manual  labour. 

That  the  two  stand  on  the  same  footing  is  demonstrable, 
whether  we  contemplate  the  positive  or  the  negative 
element  of  the  right.  Remembering  that  justice  under 
its  positive  aspect  consists  in  the  reception  by  each 
individual  of  the  benefits  and  evils  of  his  own  nature 
and  consequent  conduct,  it  is  manifest  that  if  any  indi- 
vidual by  mental  labour  achieves  some  result,  he  ought  to 
have  whatever  benefit  naturally  flows  from  this  result. 
Justice,  as  we  have  defined  it,  requires  that  the  connexion  | 


104  JUSTICE. 

between  conduct  and  consequence  in  this  case  shall  not  be 
traversed  any  more  than  in  any  other  case :  the  claim  to 
the  anticipated  good  is  a  valid  claim. 

No  less  obvious  is  it  that  the  negative  element  of  justice, 
which,  among  associated  creatures,  restrains  the  activities 
of  each  within  the  limits  imposed  by  the  like  activities  of 
all,  forbids  appropriation  of  another's  mental  product;  or 
rather,  forbids  use  of  it  without  the  assent  of  the  producer, 
if  it  is  of  a  kind  from  the  use  of  which  by  others  the 
producer  sought  advantage.  Supposing  a  mental  product 
elaborated  by  A,  is,  without  his  assent,  used  to  their  own 
advantage  by  B,  C,  and  D,  they  commit  breaches  of  the 
law  of  equal  freedom;  since  they  have  severally  benefited 
by  utilizing  the  product  of  A's  mental  labour  without 
affording  A  an  opportunity  of  benefiting  by  utilizing  any 
equivalent  products,  material  or  mental,  of  their  own  labour. 
Should  it  be  replied  that  A's  mental  product  is  not  taken 
away  from  him  by  others  but  only  used  by  them;  then  the 
rejoinder  is  that  with  mental  products,  as  with  material 
products,  the  use  by  others  may  be  the  contemplated  source 
of  profit.  One  who  builds  a  house  and  lets  it,  or  makes  a 
carriage  which  travellers  hire,  is  held  to  be  defrauded  by 
those  who  occupy  the  house  or  hire  the  carriage  without 
payment.  He  did  not  provide  for  his  own  use  but  for 
others'  use  and  he  does  not  receive  that  return  the  expecta- 
tion of  which  prompted  the  building  or  the  making.  Even 
if  no  express  contract  has  been  made  to  pay  the  rent  or 
hire,  the  owner  is  admittedly  injured.  Similarly,  then, 
though  one  who  has  elaborated  a  mental  product  is  not 
deprived  of  it  by  those  who  use  it,  yet  even  in  the  absence 
of  any  definite  understanding  with  them,  he  is  defrauded 
if  others  use  it  without  giving  him  the  benefit  for  which 
he  worked. 

There  are  two  classes  of  mental  products  from  others' 
use,  or  reception,  of  which,  the  producers  expect  advan- 


THE    RIGHT    OF    INCORPOREAL   PROPERTY.  105 

tage :  those  embodied  iu  books,  musical  compositions, 
works  of  plastic  art,  &c.,  and  those  embodied  in  inventions, 
mechanical  or  other.     We  will  consider  these  separately. 

§  59.  A  man  may  read,  listen  and  observe  to  any  extent  I 
without  diminishing  the  liberty  of  others  to  do  the  like. 
The  knowledge  thus  obtained  may  be  digested,  re-organized,^ 
and  new  knowledge  educed  from  it  by  its  possessor,  without  i 
trespassing   against  his  fellows.      If  he  keeps  to  himself  f 
these  derived  conclusions  valuable  for  guidance,  or  elabo-  \ 
rated  thoughts  valuable  for  beauty,  no  one  can  say  that  he  \ 
exceeds  the  limits  of  individual  freedom ;  and  if,  instead  of  ' 
keeping  them  to  himself,  he  decides  to  publish  them,  he  I 
may  without   aggressing   upon  any  one   impose   his   own  j 
terms.     Others  remain  free  to  accept  or  refuse,  and  if  they 
refuse,  remain  as  they  were  before.    But  if  others  disregard 
his  terms — if,  having  sold  to  them  copies  of  his  book,  either 
himself  or  through  an  agent,  on  the  tacit  understanding  that 
for  so  much  money  he  gives,  along  with  the  printed  paper, 
the  right  of  reading  and  of  lending  to  read,  but  not  the 
right  of  reproduction  ;  then  any  one  who  reproduces  breaks 
the  tacitly  imposed  conditions  and  commits  an  aggression. 
In  return  for  the  money  paid,  he  takes  a  benefit  far  greater 
than  that  which  was  intended  to  be  given  for  the  money. 

Strangely  enough,  there  are  intelligent  men  who  contend 
that  when  a  book  has  been  issued  it  becomes  public 
property,  and  that  it  is  a  corollary  from  the  principles  of 
free  trade  that  any  one  who  pleases  may  reprint  it  and  sell 
copies  for  his  own  advantage.  They  assert  that  a  copy- 
right is  a  monopoly — ought  not  to  be  considered  a  form  of 
private  property.  But  if  nobody's  property  is  taken  by 
one  who  infringes  copyright,  how  can  the  thing  taken  be 
of  value  ?  And  if  the  thing  taken  be  of  no  value,  then  the 
man  who  takes  it  would  be  no  worse  ofiF  if  prevented  from 
taking  it.  If  he  would  be  worse  off,  then  clearly  ho  has 
got  something  of  value.     And  since  this  something  of  value 


106  JUSTICE. 

is  not  a  natural  product^  the  obtainment  of  it  must  be  at 
tbe  expense  of  some  one  who  artificially  produced  it.  As  I 
some  years  since  argued  : — 

''  Those  whoj  as  members  of  the  Copyright  Commission, 
or  as  witnesses  before  it,  have  aimed,  if  not  to  abolisb 
copyright,  yet  to  restrict  it  in  ways  which  would  go  far 
towards  its  abolition,  have  done  so  in  the  alleged  interests 
of  free-trade,  and  have  sought  to  discredit  the  author's 
claim,  as  now  recognized,  by  calling  it  a  monopoly.  In 
the  politico-economic  sense  a  monopoly  is  an  arrangement 
under  which  a  person  or  body  of  persons  is  given  by  law 
the  exclusive  use  of  certain  natural  products,  or  agencies, 
or  facilities,  which,  in  the  absence  of  such  law,  would  be 
open  to  all ;  and  the  opponent  of  a  monopoly  is  one  who, 
asking  nothing  from  the  monopolist  in  the  way  of  direct  or 
indirect  assistance,  asks  only  that  he  also  may  use  these 
same  natural  products,  or  agencies,  or  facilities.  He  wishes 
to  carry  on  a  business  which  in  not  the  remotest  way  makes 
him  dependent  on  the  monopolist,  but  which  he  can  carry 
on  as  well  or  better  in  the  absence  of  the  monopolist,  and 
in  the  absence  of  everything  done  by  him.  Turn  now 
to  the  commerce  of  literature,  and  ask  how  stands  the 
so-called  free-trader  and  the  so-called  monopolist  ?  Does 
the  so-called  monopolist  (the  author)  forbid  the  so-called 
free-trader  (the  reprinter)  to  use  any  of  those  appliances 
or  processes,  intellectual  or  mechanical,  by  which  books 
are  produced  ?  No.  These  remain  open  to  all.  Does 
the  so-called  free-trader  wish  simply  to  use  these  open 
facilities  independently,  just  as  he  might  do  if  the  so- 
called  monopolist  and  his  works  were  absent  ?  No.  He 
wishes  to  be  dependent — he  wishes  to  get  advantages  which 
he  could  not  have  were  the  so-called  monopolist  and  his 
works  absent.  Instead  of  complaining,  as  the  true  free- 
trader does,  that  the  monopolist  is  an  obstacle  put  in  his 
way,  this  pseudo  free-trader  complains  that  he  may  not 
utihse  certain  aids  which  have  arisen  from  the  labour  of 


THE    EIGHT    OP    INCOEPOKEAL   PEOPEETT.  107 

the  man  whom  lie  calls  a  monopolist.  The  true  free-trader 
"wislies  only  to  use  natural  facilities,  and  complains  of  an 
artificial  impediment.  The  pseudo  free-trader,  not  content 
witli  tlie  natural  facilities,  complains  that  he  may  not  use, 
without  buying-  it,  an  artificial  aid.  Certain  opponents  cf 
copyright  expressed  astonishment  before  the  Commission 
that  authors  should  be  so  blinded  by  self-interest  as  not 
to  see  that  in  defending  their  claims,  as  now  recognized, 
they  were  defending  a  monopoly.  These  authors  might  fitly 
express  their  astonishment  that  professed  exponents  of 
politico-economical  principles  should  confound  the  case 
of  a  man  who  wishes  to  trade  just  as  he  might  do  had 
a  certain  other  man  never  existed,  with  the  case  of  a  man 
who  wishes  to  trade  in  a  way  that  would  be  impossible 
had  a  certain  other  man  never  existed.  The  entire  anti- 
copyright  argument  rests  on  the  confusion  of  two  things 
radically  opposed,  and  with  the  establishment  of  the  proper 
distinction  the  argument  disappears."  {Edinhnrgh  Review, 
Oct.  1878,  pp.  329-30.) 

Considered,  then,  as  a  deduction  from  the  fundamental 
principle  of  justice,  copyright  cannot,  I  think,  be  questioned 
with  any  show  of  reason. 

§  60.  First  customs,  and  then  laws,  have  recognized  the 
claims  of  mental  producers.  Originally,  authors  "  were 
rewarded  by  the  contributions  of  the  audience  or  by  the 
patronage  of  those  illustrious  persons  in  whose  houses  they 
recited  their  works:"  disregard  of  the  obligation  to  remune- 
rate being  regarded  as  mean,  if  not  dishonest.  In  later 
Roman  times,  this  proprietory  right  had  become  so  far 
established  as  to  have  a  mercantile  value.  Mr.  Copinger 
points  out  that  several  ancient  authors  sold  their  produc- 
tions; viz.  Terence  his  EunncJms  and  Hccyra,  and  Statiushis 
Agave:  the  implication  being  that  the  copyists  had  acquired 
practically,  if  not  by  law,  exclusive  use  of  the  MSS.  In 
our  own  country,  the  equitable  claim  of  the  author  has  for 


108  JUSTICE. 

tliese  two  centuries  been  enforced.  An  Act  of  Charles  II. 
forbad  the  printing  of  a  work  without  the  writer's  assent; 
and  under  this  act,  copyrights  were  so  far  established  as  to 
be  bought  and  sold.  In  1774  it  was  decided  that  common 
law  gives  the  author  and  his  assigns  sole  right  of  publica- 
tion in  perpetuity ;  but  that  the  period  had  been  abridged 
by  a  previous  statute  to  a  term  of  years.  The  principle 
was  subsequently  extended  to  other  forms  of  mental  pro- 
ducts, as  specified  in  the  essay  by  Mr.  Robertson — to 
certain  works  of  art  by  8  Geo.  II.,  c.  13,  7  Geo.  III.,  c.  38, 
and  38  Geo.  III.,  c.  71  (models  and  casts)  ;  to  dramatic 
productions  by  3  &  4  AVill.  IV.,  c.  15;  to  lectures  by  5  &  6 
Will.  IV.,  c.  65 ;  to  musical  productions  by  5  &  6  Vict.,  c. 
45;  to  lithographs  by  15  &  16  Vict.,  c.  12,  and  to  paintings 
in  1862. 

By  those  who  have  legislated,  as  well  as  by  those  who 
have  considered  the  question  from  an  ethical  point  of  view, 
the  proper  duration  of  copyright  has  been  a  problem  not 
easily  solved :  should  it  be  for  the  author  and  his 
descendants  without  limit,  or  for  his  life  and  a  term  of  years 
after,  or  for  his  life  only  ?  There  is  no  obvious  reason  why 
property  of  this  kind  should  not  be  subject  to  the  same  laws 
of  possession  and  bequest  as  other  property.  If  it  be 
said  that  the  language,  knowledge,  and  other  products  of 
past  culture  used  by  the  author  or  artist,  belong  to 
society  at  large  ;  the  reply  is  that  these  mental  products  of 
civilization  are  open  to  all,  and  that  an  author  or  artist  has 
not  by  using  them  diminished  the  ability  of  others  to  use 
them.  Without  abstracting  anything  from  the  common 
stock,  he  has  simply  combined  with  certain  components  of 
it  something  exclusively  his  own — his  thoughts,  his  con- 
clusions, his  sentiments,  his  technical  skill :  things  which 
more  truly  belong  to  him  than  do  any  visible  and  tangible 
things  to  their  owners;  since  all  of  these  contain  raw 
material  which  has  been  removed  from  the  potential  use  of 
others.     So  that  in  fact  a  production  of  mental  labour  may 


THE  RIGHT  OF  INCORPOREAL  PEOPERTT.        109 

be  regarded  as  property  in  a  fuller  sense  tlian  may  a 
product  of  bodily  labour;  since  tliat  wdiicb  constitutes  its 
value  is  exclusively  created  by  the  worker.  And  if  so, 
tliere  seems  no  reason  why  the  duration  of  possession  in 
this  case  should  not  be  at  least  as  great  as  the  duration  of 
possession  in  other  cases. 

Leaving  this  question,  however,  it  is  enough  to  note  here 
that  the  right  of  property  in  this  species  of  mental  product, 
above  deduced  from  the  formula  of  justice,  has,  in  later 
civilized  times,  come  to  be  embodied  in  law ;  and  that  the 
embodiment  of  it  in  law  has  become  more  extensive  aud 
more  specific  as  social  development  has  become  higher. 

§  61.  What  has  been  said  above  in  relation  to  books 
and  works  of  art,  applies^  by  simple  change  of  terms,  to 
inventions.  In  imagining  and  bringing  to  bear  auy  new, 
or  partially  new,  mechanical  appliance,  or  in  devising  some 
process  different  from,  or  better  than,  those  before  known, 
the  inventor  is  making  no  greater  use  of  pre-existing  ideas, 
tools,  materials,  processes,  than  every  other  person  may 
make.  He  abridges  no  one's  liberty  of  action.  Hence, 
without  overstepping  the  prescribed  limits,  he  may  claim 
the  exclusive  benefit  of  his  invention ;  and,  if  he  discloses 
the  secret,  may,  without  aggressing  upon  any  one,  dictate 
the  terms  for  utilization.  While,  contrariwise,  another 
person  who  does  not  accede  to  his  terms,  cannot  utilize  his 
invention  without  breach  of  the  law  of  equal  freedom ;  since 
he  appropriates  a  product  of  the  inventor's  labour  without 
allowing  the  inventor  to  appropriate  an  equivalent  product 
of  his  labour  or  an  equivalent  possession  of  some  other; 
kind. 

That  one  who  has  spent  years  in  thinking  and  experi- 
menting, often  joiniug  expenditure  of  money  with  his  brain- 
work  and  hand-work,  should  not  be  admitted  to  have 
an  equitable  claim  to  the  resulting  advantage,  is  a  fact 
discreditable  to  the  average  conscience;  and  it  is  the  more 


110  JUSTICE. 

discreditable  when  taken  in  connexion  "witli  tlie  fact  that 
various  claims  implying  no  labour  or  sacrifice  are  not  only 
allowed  but  insisted  upon.  A  speculator  who  makes  money 
by  a  rise  in  the  share-market,  a  sinecurist  who  has  long 
received  a  large  salary  for  doing  nothing,  and  even  a 
descendant  of  a  king's  mistress  who  is  in  receipt  of  a  pen- 
sion that  was  granted  m  perpetuity,  has  his  conventionally- 
established  rights  tenderly  considered  ;  while  the  mechanic 
who,  working  early  and  late,  perhaps  to  the  destruction  of 
his  health  and  the  frittering  away  of  all  his  means,  has  at 
length  perfected  a  machine  of  marvellous  efficiency,  is  not 
supposed  to  have  acquired  any  '^vested  interest"  in  this 
outcome  of  the  vital  energies  he  has  irrecoverably  spent 
upon  it.  Most  of  his  fellow  men  are  quite  willing  that  he 
should  sacrifice  time  and  money  and  labour,  meanwhile 
jeering  at  him  as  a  visionary  schemer ;  but  when  to  their 
astonishment  he  succeeds,  and  the  beneficial  results  flowing 
from  his  achievement  become  manifest,  there  arises  the 
exclamation — "  Oh!  this  is  a  monopoly  and  ought  not  to  be 
tolerated.''  Even  should  those  in  power  take  measures  to 
protect  him  and  others  such,  so  that  if  he  can  pay  in  fees 
the  sum  demanded  he  may  take  out  a  patent,"^  the  measures 
are  taken  not  on  the  score  of  equity  but  on  the  score  of 
policy.  ^'  A  patent  is  not  a  thing  which  can  be  claimed  as  a 
right,"  the  lawyers  say;  but  it  is  intended  to  "act  as  a 
stimulus  to  industry  and  talent."  So  that  though  the 
taking  of  the  smallest  material  product — as  a  penny  filched 
from  the  till  by  a  shop-boy — is  a  punishable  offence,  this 
mental  product,  great  as  its  worth  and  immense  as  the 
labour  it  has  cost,  may,  in  the  absence  of  certain  legal 
formalities,  be  turned  by  a  capitalist  to  immense  profit, 
without  punishment  and  without  disgrace. 

Even  were  an  invention  of  no  benefit  to  society  unless 
thrown  open  to  unbought  use,  there  would  still  be  no  just 
ground  for  disregarding  the  inventor's    claim;  any  more 
*  Not  many  years  since  the  total  cost  was  several  hundred  pounds. 


THE  EIGHT  OP  INCORPOREAL  PROPERTY.        Ill 

than  for  disregarding  the  claim  of  one  who  labours  on  his 
farm  for  his  own  benefit  and  not  for  public  benefit.  But  as 
it  is,  society  unavoidably  gains  immensely  more  than  tlie 
inventor  gains.  Before  he  can  receive  any  advantage  from 
his  new  process  or  apparatus,  he  must  confer  advantages 
on  his  fellow  men — must  either  supply  them  with  a  better 
virticle  at  the  price  usually  charged,  or  the  same  article  at  a 
lower  price.  If  he  fails  to  do  this,  his  invention  is  a  dead 
letter ;  if  he  does  it,  he  makes  over  to  the  world  at  large 
nearly  all  the  new  mine  of  wealth  he  has  opened.  By  the 
side  of  the  profits  which  came  to  Watt  from  his  patents, 
place  the  profits  which  his  improvements  in  the  steam- 
engine  have  since  brought  to  his  own  nation  and  to  all 
nations,  and  it  becomes  manifest  that  the  inventor's  share 
is  infinitesimal  compared  with  the  share  mankind  takes. 
And  yet  there  are  not  a  few  who  would  appropriate  even 
his  infinitesimal  share  ! 

But  insecurity  of  this  kind  of  mental  property,  like 
insecurity  of  material  property,  brings  disastrous  results. 
As  in  a  society  so  governed  that  one  who  accumulates 
wealth  cannot  keep  it,  an  unprosperous  state  results  from 
lack  of  capital ;  so,  among  a  people  who  ignore  the  inventor's 
claims,  improvements  are  inevitably  checked  and  industry 
suffers.  For,  on  the  average,  ingenious  men  will  decline 
to  tax  their  brains  without  any  prospect  of  returns  for 
their  labours. 

Here,  however,  we  are  chiefly  concerned  to  observe  that, 
if  not  from  motives  of  equity,  then  from  motives  of  policy^ 
the  inventor's  claim  has  slowly  been  established  by  law. 
Though,  in  our  own  country,  patents  were  originally 
granted  as  matters  of  favour ;  and  though,  for  a  long  period, 
they  were  confounded  with  monopolies  rightly  so  called ; 
yet  when,  in  1G28,  monoi^olies  rightly  so  called  were  made 
illegal,  there  was  recognized  a  distinction  between  them 
and  the  exclusive  rights  granted  to  inventors.  Besides  the 
belief  that  it  was  expedient  to  encourage  inventors,  there 


112  JUSTICE. 

was  perhaps  a  dim  perception  tliat  wMle,  in  tlie  case  of  a 
monopoly  rightly  so  called,  other  people  are  in  no  way 
indebted  to  the*  monoj)olist  for  ability  to  carry  on  their 
activities,  but  would  have  done  as  well  or  much  better  had  he 
never  existed ;  in  the  case  of  the  so-called  monopoly  of  an 
inventor^  other  people  who  use  his  invention  are  indebted 
to  him,  and  had  he  never  existed  would  have  been  unable 
to  do  that  which  they  now  do  with  his  help.  Whether  with 
or  without  any  vague  consciousness  of  this,  the  inventor's 
claim,  for  several  centuries  legislatively  enforced,  has  of 
late  come  to  be  more  carefully  regarded;  and,  by  great 
reduction  of  fees,  the  impediments  in  the  way  of  obtaining 
legal  protection  have  been  reduced.  To  which  add  that 
there  has  been  a  like  growing  recognition  in  the  laws  of 
other  countries,  and  a  much  greater  one  in  America ;  with 
a  resulting  superiority  in  labour-saving  appliances. 

A  restriction  of  the  right  thus  set  forth  and  justified, 
must  be  named.  It  is  a  truth,  made  familiar  by  modern 
experience,  that  discoveries  and  inventions,  while  in  part 
results  of  individual  genius,  are  in  part  results  of  pre- 
existing ideas  and  appliances.  One  of  the  implications, 
also  made  familiar  by  modern  experience,  is  that  about  the 
period  when  one  man  makes  a  discovery  or  invents  a 
machine,  some  other  man,  possessed  of  similar  knowledge 
and  prompted  by  a  like  imagination,  is  on  the  way  to  the 
same  discovery  or  invention ;  and  that  within  a  moderate 
period  this  discovery  or  invention  is  tolerably  certain  to  be 
made  elsewhere — possibly  by  more  than  one.  A  long- 
continued  exclusive  use  of  his  invention  would  therefore  be 
inconsistent  with  other  equitable  claims  likely  to  arise;  and 
hence  there  is  need  for  a  limitation  of  the  period  during  which 
he  may  rightly  receive  protection.  '  Over  how  many  years  the 
protection  should  extend,  is  a  question  which  cannot  be  : 
answered  here ;  and,  indeed,  cannot  be  answered  at  all  in  i 
any  but  an  empirical  manner.  To  estimate  the.  proper 
period  account  should  be  taken  of  the  observed  intervals  of 


THE    EIGHT   OF   INCOKPOEEAL   PEOPEETY.  113 

time  commonly  elapsing  between  similar  or  identical  inven- 
tions made  by  different  men.  There  might  fitly  be  some 
recognition  of  the  prolonged  thought  and  persevering 
efforts  bestowed  in  bringing  the  invention  to  bear;  and 
there  should  also  enter  into  the  calculation  an  estimate, 
based  on  evidence,  of  the  probable  interval  during  which 
exclusive  use  of  the  invention  should  be  insured  to  make 
possible  an  adequate  return  for  labour  and  risk.  Obviously 
the  case  is  one  in  which  the  relations  of  the  individual  to 
other  individuals  and  to  society,  are  so  involved  and  so 
vague,  that  nothing  beyond  an  approximately  equitable 
decision  can  be  reached. 

§  62.  Yet  another  kind  of  that  which  we  may  class  as 
incorporeal  property  has  to  be  here  dealt  with — a  kind  dis- 
tinguishable from  the  kinds  dealt  with  above,  in  the  respect 
that  it  does  not  finally  issue  in  physical  benefit,  but  issues 
in  mental  benefit — in  the  agreeable  emotion  caused  by 
other  men's  approval. 

This  form  of  incorporeal  property  is,  indeed,  an  accom- 
paniment of  the  forms  arising  from  mental  achievements. 
The  reputation  obtained  by  a  poem,  a  history,  a  scientific 
treatise,  a  work  of  plastic  art,  or  a  musical  composition,  is 
regarded  by  the  producer  as  part  of  the  reward  for  his 
labour — often,  indeed,  the  chief  part.  And  at  the  same 
time  that  he  is  held  entitled  to  the  resulting  credit,  the 
endeavour  made  by  another  to  obtain  by  plagiarism  the 
wliole  or  part  of  this  credit,  is  regarded  as  a  disgrace. 
Though  there  is  no  legal  penalty  for  this  kind  of  theft,  yet 
there  is  a  social  penalty.  Similarly  with  a  discovery  or  an 
invention.  Not  the  pecuniary  profit  only  is  recognized  as 
rig-htly  belonging  to  the  originator,  but  also  the  applause 
appropriate  to  his  ingenuity  or  insight;  and  reprobation 
is  vented  on  one  who  tries  to  intercept  this  applause  by 
pretending  to  be  the  inventor  or  the  discoverer.  Tacitly, 
if  not  overtly,  the  acquired  share  in  the  good  opinion  of 
C 


114  JUSTICE. 

fellow  men  is  considered  a  thing  to  be  enjoyed ;  wliile  the 
usurpation  of  it  is  condemned  as  dishonest.  The  reputation 
gained  is  treated  as  incorporeal  property. 

But  another  and  far  more  important  kind  of  incorporeal 
property  is  that  which  arises,  not  from  intellectual  achieve- 
ment, but  from  moral  conduct.  If  the  reputation  brought 
by  mental  actions  which  take  the  form  of  production,  may 
fitly  be  regarded  as  incorporeal  property,  still  more  may 
the  reputation  brought  by  mental  actions  issuing  in  rectitude, 
truthfulness,  sobriety,  and  good  behaviour  at  large,  which 
we  call  character;  and  if  deprivation  of  the  one  is  flagitious 
still  more  is  deprivation  of  the  other.  Earned  like  other 
property  by  care,  self-denial,  perseverance,  and  similarly 
giving  its  owner  facilities  for  gaining  his  ends  and  satisfying 
divers  desires,  the  esteem  of  others  is  a  possession,  having 
analogies  with  possessions  of  a  palpable  nature.  Indeed  it 
has,  like  palpable  possessions,  a  money  value;  since  to  be 
accounted  honest  is  to  be  preferred  as  one  with  whom 
dealings  may  be  safely  carried  on,  and  to  lose  character  is 
to  lose  business.  But  apart  from  this  effect,  an  estate  in 
the  general  good-will  appears  to  many  of  more  worth  than 
one  in  land.  By  some  great  action  to  have  won  golden 
opinions,  may  be  a  richer  source  of  gratification  than  to 
have  obtained  bank-stock  or  railway-shares.  Hence,  men 
who  have  invested  their  labour  in  noble  deeds,  and  receive 
by  way  of  interest  the  best  wishes  and  cordial  greetings  of 
society,  may  be  considered  as  having  claims  to  these  rewards 
of  virtue,  resembling  the  claims  of  others  to  the  rewards  of 
industry.  Of  course  this  is  true  not  only  of  those  who  are 
distinguished  by  unusual  worth ;  it  is  true  of  all.  To  the 
degree  in  which  each  has  legitimately  gained  a  good  repute, 
we  must  hold  him  entitled  to  it  as  a  possession — a  posses- 
sion which,  without  quoting  the  hackneyed  saying  of  lago. 
may  be  held  of  more  value  than  any  other. 

The  chief  way  in  which  this  product  of  good  condud 
differs  from  other  mental   products,  is   that  though,  lik( 


THE    RIGHT    OF    INCORPOREAL   PROPERTY.  115 

them,  it  may  be  taken  away,  it  cannot  be  appropriated 
by  the  person  who  takes  it  away.  This  may,  perhaps,  bo 
considered  a  reason  for  classing  the  interdict  against  injur- 
ing another's  character  as  an  interdict  of  nogative  bene- 
ficence rather  than  an  interdict  of  justice :  an  illustration 
of  the  truth  that  the  division  of  ethics  into  separate  sections 
cannot,  in  all  cases,  be  clearly  maintained.  Still,  since  a 
good  reputation  is  acquired  by  actions  carried  on  within  the 
prescribed  limits  to  actions,  and  is,  indeed,  partly  a  result 
of  respect  for  those  limits ;  and  since  one  who  destroys 
any  or  all  of  the  good  reputation  so  acquired,  interferes 
•with  another's  life  in  a  way  in  which  the  other  does  not 
interfere  with  his  life ;  it  may  be  argued  that  the  right  to 
character  is  a  corollary  from  the  law  of  equal  freedom.  If 
it  be  said  that  whoever  is  thus  injured  may  (in  some  cases 
at  least)  retaliate  on  the  injurer,  as  we  see  in  recrimination, 
or,  as  among  the  vulgar,  in  the  mutual  calling  of  names  ; 
the  reply  is  that,  as  shown  in.  chapter  VI,  the  law  of  equal 
freedom,  rightly  interpreted,  does  not  permit  exchange  of 
injuries ;  and  as  it  does  not  countenance  physical  retaliation 
neither  does  it  countenance  moral  retaliation.  So  that 
though  another's  good  character,  when  taken  away,  cannot 
be  appropriated  by  the  traducer,  the  taking  of  it  away  is 
still  a  breach  of  the  law  of  equal  freedom,  in  the  same  way 
that  destroying  another's  clothes,  or  setting  fire  to  his  house^ 
is  a  breach. 

This  reasoning  concerns  only  those  cases  in  which  the 
good  reputation  enjoyed  has  been  rightly  obtained,  and 
does  not  touch  those  cases  in  which  it  has  been  obtained  by 
deception  or  survives  through  others'  ignorance.  Conse- 
quently, it  cannot  be  held  that  one  who  injures  another's 
good  reputation  by  stating  facts  at  variance  with  it  which 
are  not  generally  known,  breaks  the  law :  he  simply  takes 
away  that  which  ought  not  to  have  been  possessed.  What- 
ever judgment   may  be   passed  on  his  act,  it  cannot  be 


116  JUSTICE. 

assimilated  to  acts  in  wliicli  tlie  character  taken  away  is 
one  that  is  legitimately  owned.  Indeed^  in  many  cases,  his 
act  is  one  which  conduces  to  the  welfare  of  others,  and,  in 
some  cases,  is  prompted  by  the  desire  to  prevent  trespasses 
upon  them.  Hence,  though  it  may  be  held  punishable, 
in  common  with  acts  which  take  away  character  rightly 
possessed,  there  does  not  seem  to  be  auy  ethical  warrant 
for  the  punishment. 

There  remains  to  be  noticed  the  blameworthiness  of  those 
who  aid  and  abet  the  taking  away  of  character  by  repeating 
injurious  statements  without  taking  any  trouble  to  ascertain 
their  truth.  At  present  those  who  circulate  a  calumny 
without  inquiring  into  the  evidence,  or  estimating  the 
probability,  are  supposed  by  most  people  to  have  committed 
no  offence;  but,  hereafter,  it  will  perhaps  be  seen  that 
they  cannot  be  exonerated.  Indeed  in  law  they  are  not 
exonerated,  but  are  liable  to  penalty. 

As  in  the  preceding  cases,  the  ethical  requirements  have^ 
as  just  implied,   grown  into  legal  recognition.     The  for- 
bidding of  false  witness  against  a  neighbour  is  of  ancieul 
date.     Libel,  even   when  directed  against  the  dead,  wa.' 
punishable   under   the    Eoman   law.     In  lower  stages   oJ 
civilization,  however,  protection  of  character  by  punishmem 
of  slanderers,  was  established  chiefly  in  the  interests  of  th( 
superior.     The  Buddhist  code  prescribed  a  severe  punishl 
ment  for  insulting  speech  against  a  man  of  the  highesi 
caste.     During  early  times  in  Europe,  men  of  position  wers 
supposed  to  preserve  their  characters,  as  well  as  their  pos 
sessions,  by  force  of  arms.  Later  there  came  legal  protectioi 
of  the  higher  from  libels  uttered  by  the   lower,   agains 
whom  the  remedy  by  duel  was  not  available.     In  the  reig:, 
of  Edward  I,  this  remedy  was  initiated ;  and  it  was  mor 
fully  enacted,  with  this  avowed  purpose,  by  Richard  Ij 
Instead  of  being  a  law  for  the  advantage  of  a  privilege^ 
class,  the  law  of  libel  eventually  became  a  law  for  th 
advantage  of  all  classes ;  and  has,  in  our  own  days,  com 


THE    RIGHT    OP   INCOEPOEEAL   PROrERTY. 


117 


to  be  constantly  invoked  -witli  effect :  indeed  with  too  much 
effect,  considering  that  that  which  may  be  regarded  as  fair 
criticism  is  sometimes  held  to  be  libellous. 

Here  then,  as  before,  a  conclusion  which  may  be  deduced 
from  the  fundamental  principle  of  equity,  has,  with  the 
advance  of  society,  acquired  a  legal  embodiment. 


CHAPTER  XIY, 

THE  EIGHTS  OF  GIFT  AND  BEQUEST. 

§  G3.  Complete  ownership  of  anything  implies  powe? 
to  make  over  the  ownership  to  another;  since  a  partial  or 
entire  interdict  implies  partial  or  entire  ownership  by  the 
authority  issuing  the  interdict^  and  therefore  limits  or  over- 
rides the  ownership.  Hence^  if  the  right  of  property  is 
admitted,  the  right  of  gift  is  admitted. 

The  last  has,  indeed,  as  deep  a  root  as  the  first.  If  we 
refer  back  to  those  conditions  to  sustentation  of  the  indi- 
vidual and  of  the  species,  from  which  the  fundamental 
principles  of  ethics  are  deducible,  we  see  that  while  indi- 
vidual preservation  depends  on  the  habitual  maintenance 
of  the  natural  relation  between  efforts  and  the  products  of 
efforts,  the  preservation  of  the  species  depends  on  the 
transfer  of  paints  of  such  products,  in  either  prepared  or 
crude  forms,  from  parents  to  offspring.  The  ability  to  give 
away  that  which  has  been  acquired,  consequently  underlies 
the  life  of  every  species,  including  the  human  species. 

Of  course  there  cannot  be  assigned  the  same  warrant  for 
the  right  of  gift  to  others  than  offspring.  Of  this,  while  we 
say,  in  the  first  place,  that  it  is  a  corollary  from  the  right 
of  property,  we  may  say,  in  the  second  place,  that  it  is  also 
a  corollary  from  the  primary  principle  of  justice.  The  joint 
transaction  of  giving  and  receiving,  directly  concerns  only 
the  donor  and  the  recipient;  and  leaves  all  other  persona 


THE    RIGFITS    OF    GIFT   AND    BEQUEST.  119 

unaffected  in  so  far  as  tlieir  liberties  to  act  lu-e  concerned. 
Though  the  handing  over  something  possessed,  by  A  to  B, 
may  affect  C,  D,  E,  &c.,  by  negativing  certain  activities 
^Yhich  they  proposed  to  pursue;  such  activities,  contingent 
on  events  that  might  or  might  not  happen,  cannot  be 
included  among  those  activities  which  may  not  be  hindered 
without  aggressing  upon  them.  Their  spheres  of  action 
remain  intact. 

If  the  right  of  gift  to  others  than  offspring  had  to  be 
decided  upon  from  an  expediency  point  of  view,  strong 
reasons  might  be  assigned  for  concluding  that  unrestrained 
giving  should  not  be  allowed.  One  who  duly  weighs  the 
evidence  furnished  by  the  Charity  Organization  Society,  as 
well  as  by  individuals  who  have  investigated  the  results  of 
careless  squandering  of  pence,  will  be  inclined  to  think 
that  more  misery  is  caused  by  charity  (wrongly  so-called) 
than  by  all  the  crimes  which  are  committed ;  and  will 
perhaps  infer  that  benefit  would  result  if  almsgiving  were 
forbidden.  Bat  in  this  case,  universal  belief  in  the  right 
is  so  strong  that  no  one  dreams  of  denying  it  for  reasons 
of  apparent  expediency. 

Legislation  clearly  acknowledges  this  corollary  from  the 
law  of  equal  fi-eedom.  Without  going  back  in  search  of  a 
law  asserting  the  right  of  gift,  which  probably  does  not 
exist,  it  suffices  to  name  the  implied  recognition  among 
ourselves  by  an  act  of  Elizabeth,  which,  while  it  asserts 
that  a  deed  of  gift  is  good  against  the  grantor,  makes  it 
invalid  if  put  in  bar  of  the  claims  of  creditors  :  implying,  in 
fact,  that  while  a  man  may  give  that  which  is  his  own,  he 
may  not  give  that  which,  in  equity,  belongs  to  others. 

§  64.  The  right  of  gift  implies  the  right  of  bequest; 
for  a  bequest  is  a  postponed  gift.  If  a  man  may  legiti- 
mately transfer  what  he  possesses  to  another,  he  may 
legitimately  fix  the  time  at  which  it  shall  be  transferred. 
When  he   does  this  by   a   will,   he  partially  makes   the 


120  JUSTICE. 

transfer,  but  provides  that  tlie  transfer  shall  take  effect 
only  when  his  own  power  of  possession  ceases.  And  his 
right  to  make  a  gift  subject  to  this  condition,  is  included 
in  his  right  of  ownership ;  since,  otherwise,  his  ownership 
is  incomplete. 

One  of  the  implications  is  that  a  testator  cannot  equitably 
be  restrained  in  the  distribution  he  makes  of  his  property, 
in  so  far  as  the  choice  of  recipients  is  concerned,  or  the 
amounts  assigned  to  such  recipients.  If  other  men  in  their 
corporate  capacity  direct  that  he  shall  give  to  A  or  shall 
not  give  to  B,  or  shall  give  to  A,  B,  and  others  in  such  and 
such  proportions,  then  other  men  make  themselves  part- 
owners  of  his  property :  it  shall  be  turned  to  purposes 
which  they  will  and  not  to  purposes  which  he  wills.  And 
to  the  extent  that  his  power  of  bequest  is  thus  interfered 
with,  property  is  taken  out  of  his  possession  while  he 
still  lives. 

One  of  the  illustrations  of  the  general  truth  that  the 
civilized  man  has  greater  freedom  of  action  than  the 
partially  -  civilized  man  and  the  uncivilized  man,  is  the 
fact  that  the  right  of  bequest,  scarcely  recognized  at 
first,  has  gradually  established  itself.  Before  law  exists, 
custom,  no  less  peremptory  than  law,  habitually  prescribes 
the  modes  in  which  property  descends.  Among  sundry 
Polynesians  there  is  primogeniture,  and  in  Sumatra  equal 
division  among  male  children.  Hottentots  and  Damaras 
enforce  primogeniture  in  the  male  line.  On  the  Gold 
Coast,  and  in  some  parts  of  Congo,  relatives  in  the 
female  line  inherit.  Among  the  Egbas  and  neighbouring 
peoples,  inheritance  by  the  eldest  son  includes  even  his 
father's  wives,  except  his  mother.  In  Timbuctoo,  the 
prescribed  share  of  a  son  is  double  that  of  a  daughter; 
while  sometimes  among  the  Ashantis,  and  habitually 
among  the  Fulahs,  slaves  and  adopted  children  succeed : 
some  freedom  of  bequest  being  thus  possessed  by  these 
higher  of  the   African   races.      In     Asia,  the   custom   of 


THE    RIGHTS    OF    GIFT   AND    BEQUEST.  121 

Arabs,  Todas,  Ghonds,  and  Bodo  and  Dliimals,  requires 
equal  division  among  the  male  sons.  Sister's  sons  inherit 
the  property  of  a  Kasia  ;  and  only  accounts  of  Karens  and 
Mishmis  mention  a  father's  ability  to  dispose  of  his  goods 
as  he  pleases.  Similarly  was  it  with  the  European  races 
in  early  times.  Tacitus  writes  of  the  primitive  Germans 
that  ''  there  are  no  wills ; "  Belloguet  concludes  that 
"Celtic,  like  German,  customs  did  not  admit  a  right  of 
testament;"  and  Koenigswarter  says  the  like  of  the  Saxons 
and  Frisians.  The  original  ownership  by  the  village- 
community  passed  into  family-ownership;  so  that  estates 
could  not  be  alienated  from  children  and  other  relatives. 
In  the  Merovingian  period  personalty  could  be  bequeathed, 
but  land  only  if  heirs  were  lacking.  Feudalism,  inheriting 
these  usages,  and  requiring  that  each  fief  should  furnish 
its  contingent  of  men-at-arms  properly  led,  regulated  the 
mode  of  descent  of  land  for  this  purpose;  and,  in  so  far, 
negatived  the  power  of  bequest.  But  the  growth  of  in- 
dustrialism, with  its  freer  forms  of  social  relations,  has 
brought  increased  freedom  in  the  disposition  of  property  ; 
and  it  has  brought  this  in  the  greatest  degree  where 
industrialism  has  most  subordinated  militancy,  namely, 
among  ourselves  and  tlie  Americans.  In  France,  the 
State  decides  for  the  testator  how  part  of  his  property 
shall  be  distributed  among  relatives ;  and  there  exists  a 
like  limitation  of  his  power  in  other  European  States. 
But  here,  freedom  of  bequest,  in  respect  of  personalty, 
is  uninterfered  with  in  so  far  as  distribution  goes;  and 
though,  in  respect  of  such  realty  as  is  entailed,  the  power 
of  the  proprietor  is  suspended,  and  becomes  operative  only 
under  certain  conditions,  yet  there  is  a  manifest  tendency 
towards  removal  of  this  last  restriction. 

§  65.  But  while,  along  with  the  right  of  gift,  the  right 
of  bequest  is  implied  by  the  right  of  property, — while  a 
man's  ownership  may  justly  be  held  to  include  the  right 


122  JUSTICE. 

of  leaving  defined  portions  of  wliafc  lie  owns  to  specified 
recipients ;  it  does  not  follow  that  lie  is  ethically  warranted 
in  directing  what  shall  be  done  by  the  recipients  with  the 
property  he  leaves  to  them. 

Presented  iu  its  naked  form,  the  proposition  that  a  man 
can  own  a  thing  when  he  is  dead,  is  absurd ;  and  yet,  in  a 
disguised  form,  ownership  after  death  has  been  largely  in 
past  times,  and  is  to  a  considerable  extent  at  present, 
recognized  and  enforced  by  the  carrying  out  of  a  testator's 
orders  respecting  the  uses  to  be  made  of  his  bequests. 
For  any  prescribing  of  such  uses,  implying  continuance  of 
some  power  over  the  property,  implies  continuance  of  some 
possession ;  and  wholly  or  partially  takes  away  the  posses- 
sion from  those  to  whom  the  property  is  bequeathed.  Few 
will  deny  that  the  Earth's  surface,  and  the  things  on  it, 
should  be  owned  in  full  by  the  generation  at  any  time 
existing.  Hence  the  right  of  property  may  not  equitably 
be  so  interpreted  as  to  allow  any  generation  to  tell  sub- 
sequent generations  for  what  purposes,  or  under  what 
restrictions,  they  are  to  use  the  Earth's  surface  or  the 
things  on  it. 

This  conclusion  is  no  less  forced  on  us  if  we  refer  back  to 
the  derivation  of  the  right  of  property  from  the  laws  of  life. 
For  if,  as  we  have  seen,  a  pre-requisite  to  maintenance  of 
the  species  is  that  each  individual  shall  receive  the  benefits 
and  sufi*er  the  evils  of  his  own  conduct — if  the  pre-requisite 
to  continued  sustentation  is  that  when  effort  bas  been 
expended  the  product  of  that  efibrt  shall  not  be  intercepted 
or  taken  away — if  the  right  of  property  has  this  biological 
requirement  for  its  ultimate  justification;  then,  the 
implication  is  that,  being  a  condition  to  the  maintenance  of 
life,  it  ceases  with  the  cessation  of  life. 

Strictly  interpreted,  therefore,  the  right  of  gift,  when  it 
takes  the  form  of  bequest,  extends  only  to  the  distribution  of 
the  bequeathed  property,  and  does  not  include  specification 
of  tbe  uses  to  which  it  shall  be  put. 


THE    RIGHTS    OF   GIFT   AND    BEQUEST.  123 

§  66.  Here,  however,  we  come  upon  certain  qualifica- 
tions arising  from  the  fact  that  among  human  beings  there 
are  other  relations  than  those  between  adult  citizens — the 
relations  of  parents  to  offspring.  We  have  seen  that  the 
ethics  of  the  State  and  the  ethics  of  the  Family  are  opposed 
in  nature  •  and  h^nce  when,  as  happens  at  the  death  of  a 
parent,  the  ethics  ot  both  enter  into  the  question,  a 
compromise  has  to  be  effected. 

It  may,  indeed,  be  held  that  were  human  life  normal, 
instead  of  having  the  abnormalities  due  to  its  transitional 
state,  difficulties  would  rarely  arise ;  since  the  deaths  of 
parents  would  not  occur  until  children  were  adults,  and 
property  bequeathed  to  them  might  pass  at  once  into  their 
possession  without  restrictions.  But  as,  under  existing 
conditions,  the  deaths  of  parents  often  occur  at  times  when 
children  are  unable  to  take  care  of  themselves  and  their 
property,  it  results  that,  to  fulfil  parental  obligations  as  far 
as  possible,  parents  must  so  specify  the  uses  of  bequeathed 
property  as  to  further  their  children's  welfare  during 
immaturity.  Inasmuch  as  the  products  acquired  by  efforts 
are  possessed,  not  for  self-sustentation  only,  but  for  sus- 
tentation  of  offspring,  it  follows  that  when  self-sustentation 
is  prematurely  ended,  the  acquired  products  may  rightly 
be  bequeathed  for  the  sustentation  of  offspring;  and  the 
use  of  them  for  this  purpose,  being  no  longer  possible  to  the 
parent,  may  be  given  in  trust  to  some  other  person :  such 
continued  possession  by  the  parent  as  is  thus  implied, 
lapsing  when  the  offspring  become  adult. 

This  bequest  of  property  in  trust  for  the  benefit  of 
children,  necessitates  a  fixing  of  the  age  at  which  they  may 
be  judged  capable  of  taking  care  of  themselves  and  their 
possessions ;  and  in  fixing  this  age  ethical  considerations 
give  us  no  help.  All  we  may  infer  from  them  is  that  such 
continued  ownership  of  property  by  a  dead  parent  as  is 
implied  by  prescribing  the  uses  to  be  made  of  it  for  the 
benefit   of   children,   may   rightly  last  up  to  that  age  at 


124  JUSTICE. 

which  ordinary  experiences  lead  men  to  think  that  the 
immaturity  of  children  has  ended — an  age  necessarily 
indefinite ;  since  it  varies  with  each  type  of  mankind,  is 
dij9terently  estimated  by  peoples  of  the  same  type,  and  is 
unlike  in  different  individuals. 

§  67.  A  more  perplexing  question  here  arises.  Derived 
though  the  ultimate  law,  alike  of  sub-human  justice  and 
human  justice,  is  from  the  necessary  conditions  to  self- 
preservation  and  the  preservation  of  the  species ;  and 
derived  from  this  as  are  both  the  right  of  possession  during 
life  and  that  right  of  qualified  possession  after  death 
implied  by  bequests  in  trust  for  immature  children;  a  kin- 
dred derivation  of  any  further  right  to  prescribe  the  uses 
of  bequeathed  property  appears  impracticable.  Nothing 
beyond  a  quite  empirical  compromise  seems  possible.  On 
the  one  hand,  ownership  of  property  after  death  is  un- 
warranted by  the  ultimate  principle  of  justice  save  in  the 
case  just  named.  On  the  other  hand,  when  property  has 
been  acquired,  perhaps  by  unusual  industry,  perhaps  by 
great  skill  in  business  (implying  benefit  to  others  as  well 
as  to  self)  or  perhaps  by  an  invention  permanently  valuable 
to  mankind,  it  is  hard  that  the  owner  should  be  wholly 
deprived  of  power  to  direct  the  uses  to  be  made  of  it  after 
his  death :  especially  where  he  has  no  children  and  must 
leave  it  unbequeathed  or  bequeath  it  to  strangers. 

Evidently  a  distinction  is  to  be  made.  One  who  holds 
land  subject  to  that  supreme  ownership  of  the  community 
which  both  ethics  and  law  assert,  cannot  rightly  have  such 
power  of  willing  the  application  of  it  as  involves  permanent 
alienation  from  the  community.  In  respect  of  what  is 
classed  as  personalty,  however,  the  case  is  different.  Pro- 
perty which  is  the  product  of  efforts,  and  which  has  resulted 
either  from  the  expenditure  of  such  efforts  upon  raw 
materials  for  which  equivalents  (representing  so  much' 
labour)  have  been  given  or  from  the  savings  out  of  wages 


THE    RIGHTS    OF    GIFT   AND    BEQUEST.  125 

or  salaries,  and  is  tlius  possessed  in  virtue  of  that  relation 
between  actions  and  their  consequences  on  the  maintenance 
of  which  justice  insists,  stands  in  another  category.  Such 
property  being  a  portion  of  that  which  society  has  paid  the 
individual  for  work  done,  but  which  he  has  not  consumed, 
he  may  reasonably  contend  that  in  giving  it  back  to  society, 
either  as  represented  by  certain  of  its  members  or  by  some 
incorporated  body,  he  should  be  allowed  to  specify  the 
conditions  under  which  the  bequest  is  to  be  accepted.  In 
this  case,  it  cannot  be  said  that  anything  is  alienated  which 
belongs  to  others.  Contrariwise,  others  receive  that  to 
which  they  have  no  claim  j  and  are  benefited,  even  when  they 
use  it  for  prescribed  purposes :  refusal  of  it  being  the  alter- 
native if  the  purposes  are  not  regarded,  as  beneficial.  Still, 
as  bequeathed  personal  property  is  habitually  invested, 
power  to  prescribe  its  uses  without  any  limit  of  time,  may 
result  in  its  being  permanently  turned  to  ends  which,  good 
though  they  were  when  it  was  bequeathed,  have  been  ren- 
dered otherwise  by  social  changes.  Hence  an  empirical 
compromise  appears  needful.  "We  seem  called  upon  to  say 
that  a  testator  should  have  some  power  of  directing  the 
application  of  property  not  bequeathed  to  children,  but  that 
his  power  should  be  limited ;  and  that  the  limits  must  be 
settled  by  experience  of  results. 

§  68.  Since  social  self-preservation  takes  precedence  of 
individual  self-preservation,  it  follows  that  there  exists  a 
warrant  for  such  qualification  of  the  right  of  bequest  as 
arises  from  the  need  for  meeting  the  cost  of  protecting  the 
society  against  other  societies,  and  protecting  individuals 
against  other  individuals.  Granting  that  under  existing 
conditions  it  is  relatively  right  that  the  community,  through 
its  governmental  agency,  should  appropriate  the  property 
of  each  citizen  to  the  extent  requisite  for  maintaining 
national  defence  and  social  order ;  it  becomes  a  question  of 
policy  in   what  way  the  needful   appropriations  shall   be 


126  JUSTICE. 

made ;  and  if  it  appears  convenient  that  part  of  the  I'equired 
revenues  should  be  raised  by  per-centages  on  bequeathed 
property,  no  ethical  objection  can  be  urged. 

Subject  to  this  qualification,  we  see  that  the  foregoing 
deductions  from  the  law  of  equal  freedom  are  justified  by 
their  correspondence  with  legislative  provisions;  and  that 
there  has  been  a  progressive  increase  in  the  correspondence 
between  the  ethical  and  the  legal  dicta.  The  right  of  gift, 
not  everywhere  admitted  in  old  times,  has  been  in  later 
times  tacitly  recognized  by  Acts  which  limit  it  to  property 
that  is  equitably  a  man's  own.  The  right  of  bequest, 
scarcely  existing  in  early  social  stages,  has  been  established 
more  and  more  in  proportion  as  the  freedom  of  the  indi- 
vidual has  become  greater;  and  has  reached  the  fullest 
legislative  assertion  under  our  own  free  institutions  and  the 
American  ones  derived  fi'om  them.  Directions  for  the  uses 
of  property  left  to  immature  children,  which  we  have  seen 
to  be  ethically  warranted,  have  become  authorized  by  law. 
And  such  restrictions  on  the  power  of  ordering  what  shall 
be  done  with  property  otherwise  bequeathed,  as  are  em- 
bodied in  laws  of  mortmain  and  the  like,  hai-monize  with 
ethical  inferences. 


CHAPTER    XV. 

THE  EIGHTS   OF  FEEE   EXCHANGE   AND  FEEE   CONTEACT. 

§  69.  What  -was  said  at  tlie  outset  of  the  last  chapter 
concerning  the  right  of  gift,  may  be  said  here,  with  change 
of  terms,  concerning  the  right  of  exchange ;  for  exchange 
may  not  unfitly  be  regarded  as  a  mutual  cancelling  of  gifts. 
Probably  most  readers  will  think  this  a  fanciful  interpreta- 
tion of  it ;  but,  contrariwise,  it  is  an  interpretation  forced 
on  us  by  inspection  of  tlie  facts.  For  whereas  barter  is 
not  universally  understood  among  the  lowest  tribes,  the 
making  of  presents  is  universally  understood ;  and  where 
the  making  of  presents  becomes  habitual,  there  grows  up 
the  conception  that  equivalent  presents  should  be  made  in 
return.  Numerous  books  of  travel  exemplify  this  con- 
ception. Evidently,  then,  from  the  exchange  of  equivalent 
presents,  there  may  readily  grow  up  a  constant  practice  of 
exchange  from  whicb  the  idea  of  presents  has  dropped  out. 
_  But  without  making  the  right  of  exchange  a  corollary 
from  the  right  of  gift,  it  is  clear  that  the  one  like  the  other 
is  included  in  the  right  of  property ;  since  ownership  of  a 
thing  is  incomplete  if  it  may  not  be  transferred  in  place  of 
another  thing  received. 

Further,  the  right  of  exchange  may  be  asserted  as  a 
direct  deduction  from  the  law  of  equal  freedom.  For  of 
the  two  who  voluntarily  make  an  exchange,  neither  assumes 


128  JUSTICE. 

greater  liberty  of  action  tlian  tlie  other^  and  fellow  men  are 
uninterfered  with — remain  possessed  of  just  as  much,  liberty 
of  action  as  before.  Though  completion  of  the  exchange 
may  shut  out  sundry  of  them  from  advantageous  trans- 
actions, yet  as  their  abilities  to  enter  into  such  transactions 
depended  wholly  on  the  assent  of  another  man,  they 
cannot  be  included  in  their  normal  spheres  of  action. 
These  continue  what  they  would  have  been  had  the  two 
persons  who  have  bargained  never  existed. 

Obvious  as  is  the  right  of  exchange,  recognition  of  it  in 
law  has  arisen  but  slowly ;  and,  in  most  parts  of  the  world, 
is  still  far  from  complete.  Among  the  Polynesian  races, 
exchange  is  variously  interfered  with  by  the  chiefs:  here, 
foreign  trade  being  monopolized  by  them;  there,  prices 
fixed  by  them ;  and  in  other  places  the  length  of  a  day's 
work.  Similarly  in  Africa.  The  right  of  pre-emption  in 
trade  is  possessed  by  chiefs  among  Bechuanas  and  Inland 
Negroes ;  and  there  is  no  business  without  royal  assent. 
In  Ashanti  only  the  king  and  great  men  can  trade  ;  and  in 
Shoa  certain  choice  goods  can  be  bought  only  by  the  king. 
The  Congo  people,  Dahomans,  and  Fulahs,  have  com- 
mercial chiefs  who  regulate  buying  and  selling.  Kindred 
limitations  existed  among  the  Hebrews  and  Phoenicians,  as 
also  among  the  Ancient  Mexicans  and  Central  Americans. 
At  the  present  time  the  men  of  some  South  American  tribes, 
as  the  Patagonians  and  Mundrucus,  have  to  obtain  authority 
from  chiefs  before  they  can  trade.  Like  facts,  presented  by 
the  European  nations,  down  from  the  time  when  Diocletian 
fixed  prices  and  wages,  need  not  be  detailed.  All  it  concerns 
us  to  note  is  that  interferences  with  exchange  have  diminished 
as  civilization  has  advanced.  They  have  decreased,  and  in 
some  cases  have  disappeared  from  the  transactions  between 
members  of  the  same  society;  and  have  partially  disappeared 
later  from  the  transactions  between  members  of  different 
societies.  Moreover  with  this,  as  with  other  rights,  the 
interferences  have  become  smallest  where  the  development 


THE    EIGHTS    OF    FKEE    EXCHANGE    AND    FliEE    CONTKACT.       129 

of  the  industrial  type  with  its  concomitant  free  institutions, 
has  become  greatest^  namely,  among  ourselves. 

It  is  worthy  of  note,  however,,  that  the  changes  which 
established  almost  entire  freedom  of  trade  in  England,  were 
chiefly  urged  on  grounds  of  policy  and  not  on  grounds  of 
equity.  Throughout  the  Anti-Corn-Law  agitation  little  was 
said  about  the  "right"  of  free  exchange;  and  at  the 
present  time  such  reprobation  as  we  hear  of  protectionists, 
at  home  and  abroad,  is  vented  exclusively  against  the  folly 
of  their  policy  and  not  against  its  inequity.  Nor  need  we 
feel  any  surprise  at  this  if  we  remember  that  even  still  the 
majority  of  men  do  not  admit  that  there  should  be  freedom 
of  exchange  in  respect  of  work  and  wages.  Blinded  by 
what  appear  to  be  their  interests,  artizans  and  others 
tacitly  deny  the  riglats  of  employer  and  employed  to  decide 
how  much  money  shall  be  given  for  so  much  labour.  In 
this  instance  the  law  is  in  advance  of  the  average  opinion : 
it  insists  that  each  citizen  shall  be  at  liberty  to  make  what- 
ever bargains  he  pleases  for  his  services ;  while  the  great  / 
mass  of  citizens  insist  that  each  shall  not  be  at  liberty 
to  do  this. 


§  70.  Of  course  with  the  right  of  free  exchange  goes 
the  right  of  free  contract :  a  postponement,  now  under- 
stood now  specified,  in  the  completion  of  an  exchange, 
serving  to  turn  the  one  into  the  other. 

It  is  needless  to  do  more  than  name  contracts  for  services 
on  certain  terms;  contracts  for  the  uses  of  houses  and  lands ; 
contracts  for  the  completion  of  specified  works ;  contracts 
for  the  loan  of  capital.  These  are  samples  of  contracts 
which  men  voluntarily  enter  into  without  aggressing  on 
any  others — contracts,  therefore,  which  they  have  a  right 
to  make. 

In  earlier  times  interferences  with  the  right  of  exchange 
were  of  course  accompanied  by  interferences  Avith  the  right 
cf  contract.     The  multitudinous  regulations  of  wages  and 


130  JUSTICE. 

prices^  whicli  century  after  century  eiicnm'bered  tlie  statute 
books  of  civilized  peoples^  were  examples.  Decreasing 
■n-ith  tlie  decrease  of  coercive  rule,  tliese  have,  in  our  days, 
mostly  disappeared.  One  such  gradual  cliange  may  be 
instanced  as  typifying  all  others — that  which  usury  laws 
furnish.  In.  sundry  cases  where  but  small  progress  towards 
free  institutions  had  been  made,  the  taking  of  interest  for 
money  lent  was  forbidden  altogether j  as  among  the 
Hebrews,  as  among  ourselves  in  the  remote  past,  and  as 
among  the  French  at  the  time  of  the  greatest  monarchical 
power.  Then,  as  a  qualification,  we  have  the  fixing  of 
maximum  rates ;  as  in  early  ages  by  Cicero  for  his  Eoman 
province;  as  in  England  by  Henry  YIII  at  10  per  cent., 
by  James  I  at  8  per  cent.,  by  Charles  II  at  6  per  cent.,  by 
Anne  at  5  per  cent. ;  and  as  in  France  by  Louis  XV  at 
4  per  cent.  Finally  we  have  removal  of  all  restrictions, 
and  the  leaving  of  lenders  and  borrowers  to  make  their 
own  bargains. 

"VYhile  we  observe  that  law  has  in  this  case   gradually 
come  into  correspondence  with  equity,  we  may  also  fitly 
observe  one    exceptional  case  in  v>diich  the  two  agree  in 
forbidding  a  contract.     I  refer  to  the  moral  interdict  and 
the   legal  interdict  against  a  man's  sale  of  himself  intr 
slavery.     If  we  go  back  to  the  biological  origin  of  justice 
as  being  the  maintenance  of  that  relation  between  efi'ort; 
and  the  products  of  efforis  which  is  needful  for  the  con- 
tinuance of  life,  we  see  that  this  relation  is  suspended  b; 
bondage;    and   that,    therefore,    the   man   who   agrees   t< 
enslave  himself  on  condition  of  receiving  some  immediate 
benefit,  traverses  that  ultimate  principle  from  which  socia 
morality  grows.     Or  if  we  contemplate  the  case  from  a: 
immediately  ethical  point  of  view,  it  becomes  manifest  tha 
since  a  contract,  as  framed  in  conformity  with  the  law  c 
equal  freedom,  implies  that  the  contracting   parties  sha 
severally  give  what  are  approximately    equivalents,   that' 
can  be  no  conlract,  properly  so  called,  in  which  the  tern 


THE  EIGHTS  OP  FREE  EXCHANQE  AND  FUEE  CONTRACT.   131 

are  incommensurable;  as  they  are  wlien,  for  some  present 
enhancement  of  liis  life,  a  man  bargains  away  tlie  rest  of 
his  life.  So  that  when,  instead  of  recog-nizing"  the  sale  of 
self  as  valid,  law  eventually  interdicted  it,  the  exception 
it  thus  made  to  the  right  of  contract  was  an  exception 
which  equity  also  makes.  Here,  too,  law  harniouized  itself 
with  ethics. 

§  71.  These  rights  of  exchange  and  contract  have,  of 
course,  in  common  with  other  rights,  to  be  asserted  subject 
to  the  restrictions  wdiich  social  self-preservation  in  presence 
of  external  enemies  necessitate.  Where  there  is  good 
evidence  that  freedom  of  exchange  would  endanger  national 
defence,  it  may  rightly  be  hindered. 

This  is  a  limitation  of  the  right  which,  in  stages  cha- 
racterized by  permanent  militancy,  is  obviously  needful. 
Societies  in  chronic  antagonism  with  other  societies 
must  be  self-sufficing  in  their  industrial  arrangements. 
During  the  early  feudal  period  in  France,  "  on  rural  estates 
the  most  diverse  trades  were  often  exercised  simultaneously;" 
and  '^the  castles  made  almost  all  the  articles  used  in  them." 
The  difficulties  of  communication,  the  risk  of  loss  of  goods 
in  transit,  and  the  dangers  arising  from  perpetual  feuds, 
made  it  requisite  that  the  essential  commodities  should  be 
produced  at  home.  That  which  held  of  these  small  social 
groups  has  held  of  larger  social  groups ;  and  international 
freedom  of  exchange  has  therefore  been  greatly  restricted. 
The  outcry  against  being  "dependent  on  foreigners," 
which  was  common  during  the  Anti-Corn-law  agitation, 
was  not  without  some  justification;  since  it  is  only  during 
well-assured  peace  that  a  nation  may,  without  risk,  buy 
a  large  part  of  its  food  abroad,  instead  of  growing  it. 

^Beyond  this  qualification  of  the  rights  of  exchange  and 
contract,  there  remains  no  other  having  an  ethical  warrant. 
Interference  with  the  liberty  to  buy  and  sell  for  other 
reasons  than  that  just  recognized  as  valid,  is  a  trespass,  by 


132  JUSTICE. 

whatever  agency  effected.  Those  who  have  been  allowed 
to  call  themselves  '^protectionists  "  should  be  called  aggres- 
sionists;  since  forbidding  A  to  buy  of  B,  and  forcing  him 
to  buy  of  C  (usually  on  worse  terms),  is  clearly  a  trespass 
on  that  right  of  free  exchange  which  we  have  seen  to  be 
a  corollary  from  the  law  of  equal  freedom. 

The  chief  fact  to  be  here  noted,  however,  is  that  among 
ourselves,  if  not  among  other  peoples,  the  ethical  deduction, 
after  being  justified  inductively,  has  gained  a  recognition  in 
law  i  if  not  on  moral  grounds,  yet  on  grounds  of  policy. 


CHAPTER    XVI. 

THE   EIGHT    TO    FREE    INDUSTRY. 

§  72.  Tliongli,  under  one  of  its  aspects,  industrial 
freedom  is  implied  by  tlie  riglits  to  free  motion  and  loco- 
motion ;  and  thougli,  under  another  of  its  aspects,  it  is 
implied  by  the  rights  to  free  exchange  and  free  contract ; 
yet  it  has  a  further  aspect,  not  clearly  included  in  these, 
which  must  be  specifically  stated.  Though  demonstration 
of  it  is  scarcely  called  for,  yet  it  is  needful  to  indicate  it  for 
the  purpose  of  showing  how  little  it  was  once  recognized 
and  how  fully  it  is  recognized  now. 

By  the  right  to  free  industry  is  here  meant  the  right  of 
each  man  to  carry  on  his  occupation,  whatever  it  may  be, 
after  whatever  manner  he  prefers  or  thinks  best,  so  long  as 
he  does  not  trespass  against  his  neighbours  :  taking  the 
benefits  or  the  evils  of  his  way,  as  the  case  may  be.  Self- 
evident  as  this  right  now  seems,  it  seemed  by  no  means 
self-evident  to  people  in  past  times.  Naturally,  indeed,  it 
could  not  well  be  self-evident  while  more  obvious  rights 
were  unrecognized. 

Just  noting  that,  in  the  far  past,  industry  was  under 
regulations  having  a  religious  authority,  as  among  the 
Hebrews,  who,  in  Deuteronomy  XXII,  8  &c.,  were  directed 
concerning  methods  of  building  and  agriculture,  it  will 
suffice  to  observe  how  great  and  persistent  were  the 
restraints   on  industrial  liberty  among   European  peoples 


134  JUSTICE. 

during  the  supremacy  of  that  militant  organization  which 
in  all  ways  subordinates  individual  wills.  In  Old-English 
days,  the  lord  of  the  manor  in  Court-leet  inspected  indus- 
trial products;  and,  after  the  establishment  of  kingship, 
there  came  directions  for  cropping  of  lands,  times  of  shear- 
ing, mode  of  ploughing.  After  the  Conquest  regulations 
for  dyeing  were  enacted.  From  Edward  III  onwards 
to  the  time  of  James  T,  official  searchers  had  to  see  that 
various  wares  were  properly  made.  Certain  traders  were 
told  how  many  assistants  they  should  have ;  the  growing  of 
particular  plants  was  made  compulsory ;  tanners  had  to 
keep  their  hides  in  the  pits  for  specified  periods;  and 
there  were  officers  for  the  assize  of  bread  and  ale.  With 
the  development  of  institutions  characterizing  the  industrial 
type,  these  restrictions  on  industrial  freedom  diminished; 
and,  at  the  time  George  III  began  to  reign,  five-sixths  of 
them  had  disappeared.  Increasing  though  they  did  during 
the  war-period  brought  on  by  the  French  revolution,  they 
again  diminished  subsequently ;  until  there  had  been 
abolished  nearly  all  State-interferences  with  modes  of  pro- 
duction. Significantly  enough,  however,  the  recent  revival 
of  militancy  here,  consequent  on  the  immense  re-develop- 
ment of  it  on  the  Continent  (set  going,  for  the  second  time, 
by  that  greatest  of  all  modern  curses  the  Bonaparte  family) 
has  been  accompanied  by  a  reaction  towards  industrial 
regulations  ;  so  that  during  the  last  30  years  there  have- 
been  numerous  acts  saying  how  businesses  shall  be  carried 
on :  ranging  from  the  interdict  on  taking  meals  in  match^ 
factories  except  in  certain  parts,  to  directions  for  the  build-' 
ing  and  cleaning  of  artizans'  dwellings — from  orders  for  thej 
painting  of  bakehouses  to  acts  punishing  farmers  if  thejj 
employ  uneducated  children. 

Meanwhile  it  is  to  be  observed  that  in  France,  where  the 
militant  activities  entailed  by  surroundings  have  developec 
more  highly  the  militant  type  of  structure,  industria 
regulations  have  been  more  elaborate  and  more  rigorous 


THE    RIGHT   TO   FREE    INDUSTRY.  135 

having  been  carried,  during  tlie  latter  days  of  the  monarcliy, 
to  a  scarcely  credible  extent.  "  Swarms  of  public  function- 
aries ''  enforced  rules  continually  complicated  by  new  ones 
to  remedy  the  insufficiency  of  the  old:  directing,  for 
example,  "  the  lengths  pieces  of  cloth  are  to  be  Avoven, 
the  pattern  to  be  chosen,  the  method  to  be  followed,  and 
the  defects  to  be  avoided."  Even  after  the  Eevolution, 
■when  greater  industrial  freedom  was  temporarily  achieved, 
interferences  again  multiplied  ;  so  that  in  1806,  according 
to  Levasseur,  public  administrations  fixed  the  length  of  the 
day's  labour,  the  hours  of  meals,  and  the  beginning  and  end 
of  the  day  at  the  various  seasons.  Indeed,  it  is  instructive 
to  observe  how,  in  France,  where  the  idea  of  equality  has 
always  subordinated  the  idea  of  liberty ;  and  where,  under 
the  guise  of  a  free  form  of  government,  citizens  havo  all 
along  submitted  without  protest  to  a  bureaucracy  which 
has  been  as  despotic  under  the  republican  form  of  govern- 
ment as  under  the  monarchical ;  and  where  reversions  to  the 
completely  militant  type  of  structure  have  more  than  once 
occurred,  and  have  more  than  once  almost  occurred;  the 
industrial  freedom  of  the  individual,  in  common  with  other 
freedoms,  has  never  been  established  so  fully  as  here; 
where  la  gloire  has  not  been  so  predominant  an  aim  and 
militant  organization  has  never  been  so  pronounced. 

But  details  apart,  a  general  survey  of  the  facts  proves 
that  during  the  advance  from  those  early  stages  in  which 
small  respect  was  paid  to  life,  liberty,  and  property,  to  those 
later  stages  in  which  these  are  held  sacred,  there  has  been 
an  advance  from  a  regime  under  which  modes  of  pro- 
duction were  authoritatively  prescribed,  to  a  regime  under 
which  they  are  left  to  the  will  of  the  producer;  and  in 
places  where  legislation  most  recognizes  individual  freedom 
in  other  respects,  it  most  recognizes  individual  freedom 
in  this  respect. 


CHAPTER  XVII. 

THE  EIGHTS  OF  FEEE  BELIEF  AND  WOESHIP. 

§  73.  If  we  interpret  tlie  meanings  of  words  literally, 
to  assert  freedom  of  belief  as  a  right  is  absurd  ;  since  by  no 
external  power  can  this  be  taken  away.  Indeed  an  asser- 
tion of  it  involves  a  double  absurdity;  for  while  beliei 
cannot  really  be  destroyed  or  changed  by  coercion  from 
without,  it  cannot  really  be  destroyed  or  changed  bj 
coercion  from  within.  It  is  determined  by  causes  which  li( 
beyond  external  control,  and  in  large  measure  beyonc; 
internal  control.  "What  is  meant  is,  of  course,  the  righ' 
freely  to  profess  belief. 

That  this  is  a  corollary  from  the  law  of  equal  freedon 
scarcely  needs  saying.  The  profession  of  a  belief  by  an; 
one,  does  not  of  itself  interfere  with  the  professions  o, 
other  beliefs  by  others  ;  and  others,  if  they  impose  on  an; 
one  their  professions  of  belief,  manifestly  assume  uior 
liberty  of  action  than  he  assumes. 

In  respect  of  those  miscellaneous  beliefs  which  do  nc 
concern  in  any  obvious  way  the  maintenance  of  establishe 
institutions,  freedom  of  belief  is  not  called  in  questioi 
Ignoring  exceptions  presented  by  some  uncivilized  societie 
we  may  say  that  it  is  only  those  beliefs  the  profession  < 
which  seems  at  variance  with  the  existing  social  orde 
which  are  interdicted.  To  be  known  as  one  who  holds  th; 
the  political  system,  or  the  social  organization,  is  not  what 


THE    RIGHTS    OF   FREE    BELIEF   AND   WORSHIP.  137 

ouglit  to  be,  entails  penalties  in  times  and  places  wlicre  tlio 
militant  type  of  organization  is  unqualified.  But,  naturally, 
where  fundamental  rights  are  habitually  disregarded,  no 
regard  for  a  right  less  conspicuously  important  is  to  bo 
expected.  The  fact  that  the  right  of  political  dissent  is 
denied  where  rights  in  general  are  denied,  affords  no  reason 
for  doubting  that  it  is  a  direct  deduction  from  the  law  of 
equal  freedom. 

The  right  to  profess  beliefs  of  the  religious  class,  has  for  its 
concomitant  the  right  to  manifest  such  beliefs  in  acts  of  wor- 
ship. For  these,  too,  may  be  performed  without  diminishing 
the  like  rights  of  fellow  men,  and  without  otherwise 
trespassing  against  them  in  the  carrying  on  of  their  lives. 
So  long  as  they  do  not  inflict  nuisances  on  neighbouring 
people,  as  does  the  untimely  and  persistent  jangling  of 
bells  in  some  Catholic  countries,  or  as  does  the  uproar  of 
Salvation  Army  processions  in  our  own  (permitted  with 
contemptible  weakness  by  our  authorities)  they  cannot  be 
equitably  interfered  with.  Those  who  profess  other 
religious  beliefs,  in  common  with  those  who  profess  no 
religious  beliefs,  remain  as  free  as  before  to  worship  in 
their  own  ways  or  not  to  worship  at  all. 

The  enunciation  of  these  rights,  needful  for  the 
symmetry  of  the  argument,  is  in  our  day  and  country 
almost  superfluous.  But  England  is  not  the  world ;  and 
even  in  England  there  still  survive  certain  practical  denials 
of  these  rights. 

§  74.  The  savage,  far  from  possessing  that  freedom 
which  sentimental  speculators  about  society  used  to 
imagine,  has  his  beliefs  dictated  by  custom,  in  common 
with  those  usages  which  peremptorily  regulate  his  life. 
"When  we  read  that  in  Guinea,  a  man  who  does  not  fulfil 
the  prophecy  of  the  fetish  by  getting  well,  is  strangled 
because  he  has  made  the  fetish  lie,  wo  may  readily  under- 
stand that  the  expression  of  scepticism  is  practically 
7 


138    "  JUSTICE. 

unknown.  The  Fijians,  wlio,  being  worsliippers  o{  cannibal 
gods,  expressed  horror  at  the  Samoans  because  they  had' 
no  worship  hke  their  own,  and  whose  feeling  towards  Jack- 
son for  disregarding  one  of  their  religious  interdicts  was 
shown  by  angrily  calling  him  "the  white  infidel,"  are  not 
likely  to  have  tolerated  any  religious  scepticism  among 
their  own  common  people,  any  more  than  they  are  likely  U,t 
have  tolerated  any  political  scepticism  respecting  the  divine 
authority  of  their  chiefs  :  a  conclusion  we  are  compelled  to 
draw  on  reading,  in  Williams,  that  a  Fijian  who  had  been 
in  America  endangered  his  life  by  saying  that  America  waS; 
larger  than  Fiji.  j 

Turning  to  ancient   civilizations,  we  meet  with   various 
denials  of  the  right  of  free  belief.     There  is  Plato's  pre- 
scription of  punishments  for  those  who  dissented  from  th( 
Greek  religion;  there  is  the  death  of  Socrates  for  attacking 
the  current  views  concerning  the  gods;  and  there  is  thi 
prosecution  of  Anaxagoras  for  implying  that  the  Sun  wa 
not  the  chariot  of  Apollo.     Passing  to  the  time  when  th 
profession  of  the  Christian  belief  was  penal,  and  then  to  th 
subsequent  time  when  the  profession  of  any  other  belie 
was  penal,  the  only  thing  we  have  to  note  in  connexio 
with  the  doings  of  inquisitors  and  the  martyrdoms,  now  c 
Protestants  by  Catholics  and  then  of  Catholics  by  Protef 
tants,  is  that  the  thing  insisted  on  was  external  conformit;; 
It  sufiiced  if  there  was  nominal  acceptance  of  the  prescribe 
belief,  without  any  evidence  of  real  acceptance.    Leaving  tl 
period  of  these  earlier  religious  persecutions,  during  whic 
there  was  a  tacit    denial  of  the   right  of  free   belief,   , 
suffices  to  note  that  since  the  Toleration  Act  of  1688,  whic 
while  insisting  on  acknowledgment  of  certain  fundament 
dogmas,   remitted  the    penalties    on   dissent   from    other 
there  have  been  successive  relaxations.    The  disqualificatio] 
of  dissenters  for  public  posts  were  removed;    by  and  1 
those  of  CathoHcs  and  eventually  those  of  Jews ;  and  st 
more  recently  the  substitution  of  affirmation  for  oath  h 


THE    EIGHTS    OP   FREE   BELIEF   AND    WORSHIP.  139 

made  it  no  longer  legally  imperative  to  assert  or  imply 
belief  in  a  God,  before  being  permitted  to  fulfil  certain  civil 
functions.  Practically,  every  one  is  now  free  to  entertain 
any  creed  or  no  creed,  without  incurring  legal  penalty,  and 
with  little  or  no  social  penalty. 
^  By  a  kindred  series  of  changes  there  has  been  gradually 
established  freedom  of  political  belief.  Punishment  or 
ill-usage  for  rejecting  such  a  political  dogma  as  the  divine 
right  of  kings,  or  for  calling  in  question  the  right  of  some 
particular  man  to  reign,  have  ceased.  The  upholders  of 
despotism  and  the  avowed  anarchists  are  equally  at  liberty' 
to  think  as  they  please. 
I 

§  75.  Is  freedom  of  belief,  or  rather  the  right  freely  to 
profess   belief,    subject  to  no  qualification  ?     Or  from  the 
postulate  that  the  needs  for  social   self-preservation  must 
•    override  the  claims  of  individuals,  are  we  to  infer  that  under 
I    certain  conditions  the  right  may  properly  be  limited  ? 
1     <-  The  only  cases  in  which   limitation  can  be  urged  with 
manifest  force,  are  those  in.  which  the  beliefs  openly  enter- 
tained  are    such    as  tend  directly   to  diminish  the  power 
of  the  society  to   defend  itself  against  hostile   societies. 
Effectual  use  of  the  combined   forces  of  the  community, 
presupposes   subordination  to  the  government  and  to  the 
I   agencies  appointed  for  carrying  on  war ;  and  it  may  ration- 
i   ally  be  held  that  the  open  avowal  of  convictions  which,  if 
•  i  general,  would  paralyse  the  executive  agency,  ought  not  to 
'  I  be  allowed.     And  here,  indeed,  we  see  once  more  how  that 
!  militant  regime  which  in  various  other  ways  suppresses  or 
suspends  the  rights  of  individuals,  interferes  even  with  the 
right  of  free  belief. 

L  Only,  indeed,  as  we  pass  gradually  from  that  system  of 

status  which  chronic  hostilities  produce,  to  that  system  of 

I  contract  which  replaces  it  as  fast  as  industrial  life  becomes 

U  !  predominant,  does  the  assertion  of  rights  in  general  become 

b  i  more  and  more  practicable  and  appropriate ;  and  only  in 


140  JUSTICE. 

the  course  of  this  cliano^e  does  the  change  from  the  alleged 
duty  of  accepting  beliefs  prescribed  by  authority,  to  the 
asserted  right  of  individually  choosing  beliefs^  naturally 
go  on. 

Subject  to  this  interpretation,  we  see  that  the  right  of 
free  belief  has  had  a  history  parallel  to  the  histories  of 
other  rights.  This  corollary  from  the  law  of  equal  freedom, 
at  first  ignored  and  then  gradually  more  and  more  recog- 
nized, has  finally  come  to  be  fully  established  in  law. 


CHAPTER  XVIII. 

THE  EIGHTS  OF  FEEE  SPEECH  AND  PUBLICATION. 

§  76.  The  subject  matter  of  tliis  chapter  is  scarcely 
separable  from  that  of  the  last.  As  belief,  considered  in 
itself,  does  not  admit  of  being  controlled  by  external  power 
— as  it  is  only  the  profession  of  belief  which  can  be  taken 
cognizance  of  by  authority  and  permitted  or  prevented,  it 
follows  that  the  assertion  of  the  right  to  freedom  of  belief 
implies  the  right  to  freedom  of  speech.  Further,  it  implies 
the  right  to  use  speech  for  the  propagation  of  belief;  seeing 
that  each  of  the  propositions  constituting  an  argument  or 
arguments,  used  to  support  or  enforce  a  belief,  being 
itself  a  belief,  the  right  to  express  it  is  included  with  the 
right  to  express  the  belief  to  be  justified. 

Of  course  the  one  right  like  the  other  is  an  immediate 
corollary  from  the  law  of  equal  freedom.  By  using  speech, 
either  for  the  expression  of  a  belief  or  for  the  maintenance 
of  a  belief,  no  one  prevents  any  other  person  from  doing 
the  like :  unless,  indeed,  by  vociferation  or  persistence  he 
prevents  another  from  being  heard,  in  which  case  he  is 
habitually  recognized  as  unfair,  that  is,  as  breaking  the  law 
of  equal  freedom. 

Evidently  with  change  of  terms,  the  same  things  may  be 
said  concerning  the  right  of  publication — "the  liberty  of 
unlicensed  printing. "  In  respect  of  their  ethical  relations, 
there   exists   no   essential   difference   between  the  act  of 


142         .  JUSTICE. 

speaking  and  tlie  act  of  symbolizing  speecTi  by  A^ritlng,  or 
the  act  of  multiplying  copies  of  that  wliich.  has  been  written. 
One  qualification^  implied  by  preceding  chapters,  has  to 
be  named.  Freedom  of  speech,  spoken,  written,  or  printed, 
does  not  include  freedom  to  use  speech  for  the  utterance  of 
calumny  or  the  propagation  of  it;  nor  does  it  include 
freedom  to  use  speech  for  prompting  the  commission  of 
injuries  to  others.  Both  these  employments  of  it  are 
obviously  excluded  by  those  limits  to  individual  liberty 
which  have  been  set  forth. 

§  77.  Though  in  our  time  and  country  defence  of  these 
rights  seems  needless,  it  may  be  well  to  deal  with  such 
arguments  against  them  as  were  urged  among  ourselves 
in  comparatively  recent  times  and  are  still  urged  in 
other  countries. 

It  is  said  that  a  government  ought  to  guarantee  its 
subjects  "security  and  a  sense  of  security;"  whence  it  is 
inferred  that  magistrates  ought  to  keep  ears  open  to  the 
declamations  of  popular  orators,  and  stop  such,  as  are 
calculated  to  create  alamn.  This  inference,  however,  is 
met  by  the  difficulty  that  since  every  considerable  change, 
political  or  religious,  is,  when  first  urged,  dreaded  by  the 
majority,  and  thus  diminishes  their  sense  of  security,  the 
advocacy  of  it  should  be  prevented.  There  were  multitudes 
of  people  who  suff'ered  chronic  alarm  during  the  Eeform 
Bill  agitation ;  and  had  the  prerention  of  that  alarm  been 
imperative,  the  implication  is  that  the  agitation  ought  to 
have  been  suppressed.  So,  too,  great  numbers  who  were 
moved  by  the  terrible  forecasts  of  llie  Standard  and  the 
melancholy  wailings  of  TJie  Herald,  would  fain  have  put 
down  the  free-trade  propaganda ;  and  had  it  been  requisite 
to  maintain  their  sense  of  security,  they  should  have  had 
their  way.  And  similarly  with  removal  of  Catholic  dis- 
abilities. Prophecies  were  rife  of  the  return  of  papal 
persecutions  with  all  their  horrors.     Hence  the  speaking 


THE    EIGHTS    OP    FREE    SPEECH   AND    PUBLICATION.  143 

and  writing  wLicTi  brouglit  about  the  cliange  ought  to  liavo 
been  forbidden,  had  the  maintenance  of  a  sense  of  security- 
been  held  imperative. 

Evidently  such  proposals  to  limit  the  right  of  free  speech^ 
political  or  religious,  can  be  defended  only  by  making  the 
tacit  assumption  that  whatever  political  or  religious  beliefs 
are  at  the  time  established,  are  wholly  true  ;  and  since  this 
tacit  assumption  has  throughout  the  past  proved  to  be 
habitually  erroneous,  regard  for  experience  may  reasonably 
prevent  us  from  assuming  that  the  current  beliefs  are 
wholly  true.  We  must  recognize  free-speech  as  still  being 
the  agency  by  which  error  is  to  be  dissipated,  and  cannot 
without  papal  assumption  interdict  it. 

Beyond  the  need,  in  past  times  unquestioned,  for 
restraints  on  the  public  utterance  of  political  and  religions 
beliefs  at  vai-iauce  with  those  established,  there  is  the  need, 
still  by  most  people  thought  unquestionable,  for  restraining 
utterances  which  pass  the  limits  of  what  is  thought  decency, 
or  are  calculated  to  encourage  sexual  immorality.  The 
question  is  a  difficult  one — appears,  indeed,  to  admit  of  no 
satisfactory  solution.  On  the  one  hand,  it  seems  beyond 
doubt  that  unlimited  license  of  speech  on  these  matters, 
may  have  the  effect  of  undermining  ideas,  sentiments,  and 
institutions  which  are  socially  beneficial ;  for,  whatever  are 
the  defects  in  the  existing  domestic  rec/imc,  we  have  strong 
reasons  for  believing  that  it  is  in  most  respects  good.  If 
this  be  so,  it  may  be  argued  that  publication  of  doctrines, 
which  tend  to  discredit  tins  regime,  is  undoubtedly  in- 
jurious and  should  be  prevented.  Yet,  on  the  other  hand, 
we  must  remember  that  in  like  manner  it  was,  in  the  past, 
thought  absolutely  certain  that  the  propagators  of  heretical 
opinions  ought  to  be  punished,  lest  they  should  mislead'and 
eternally  damn  those  who  heard  them ;  and  this  fact 
suggests  that  there  may  be  danger  in  assuming  too  con- 
fidently that  our  opinions  concerning  the  relations  of  the 
sexes   are  just  what   they  should   be.     In  all  times  and 


144  JUSTICE. 

places  people  have  been  positive  tliat  their  ideas  and 
feelings  on  these  matters,  as  well  as  on  religious  matters, 
have  been  right;  and  yet,  assuming  that  we  are  right,  they 
must  have  been  wrong.  Though  here  in  England  we  think 
it  clear  that  the  child-marriages  in  India  are  vicious,  yet 
most  Hindus  do  not  think  so;  and  though  among  ourselves 
the  majority  do  not  see  anything  wrong  in  mercantile 
marriages,  yet  there  are  many  who  do.  In  parts  of  Africa 
not  only  is  polygamy  regarded  as  proper  but  monogamy  is 
condemned,  even  by  women;  while  in  Thibet  polyandry  is 
not  only  held  right  by  the  inhabitants  but  is  thought  by 
travellers  to  be  the  best  arrangement  practicable  in  their 
poverty-stricken  country.  In  presence  of  the  multitudinous 
differences  of  opinion  found  even  among  civilized  peoples, 
it  seems  scarcely  reasonable  to  take  for  granted  that  we 
alone  are  above  criticism  in  our  conceptions  and  practices ; 
and  unless  we  do  this,  restraints  on  free-speech  concerning 
the  relations  of  the  sexes  may  possibly  be  hindrances  tOj 
something  better  and  higher.  j 

Doubtless  there  must  be  evils  attendant  on  free  speech; 
in  this  sphere  as  in  the  political  and  religious  spheres ;  but' 
the  conclusion  above  implied  is  that  the  evils  must  be  tole-| 
rated  in  consideration  of  the  possible  benefits.  Further,  itj 
should  be  borne  in  mind  that  such  evils  will  always  be  keptj 
in  check  by  public  opinion.  The  dread  of  saying  or  writing! 
that  which  will  bring  social  ostracism,  pi'oves  in  many  casesj 
far  more  effectual  than  does  legal  restriction.  I 

§  78.  Though  it  is  superfluous  to  point  out  that,  ir| 
common  with  other  rights,  the  rights  of  free  speech  and 
publication,  in  early  times  and  most  places  either  denied  oil 
not  overtly  recognized,  have  gradually  established  them 
selves ;  yet  some  evidence  may  fitly  be  cited  with  a  view  ti 
emphasizing  this  truth. 

Various  of  the  facts  instanced  in  the  last  chapter  migl 
be  instanced  afresh  here;  since  suppression  of  beliefs  has,  b; 


J 


THE    EIGHTS    OP    FREE    SPEECH    AND    PUBLICATION.  145 

implicatioa,  been  suppression  of  free  speech.  That  the 
anger  of  the  Jewish  priests  against  Jesus  Christ  for  teaching 
things  at  variance  Avith  their  creed  led  to  his  crucifixion; 
that  Paul,  at  first  a  persecutor  of  Christians,  was  himself 
presently  persecated  for  persuading  men  to  be  Christians; 
and  that  by  sundry  Roman  emperors  preachers  of  Chris- 
tianity were  martyred;  are  familiar  examples  of  the  denial 
of  free  speech  in  early  times.  So,  too,  after  the  Christian 
creed  became  established,  the  punishment  of  some  who 
taught  the  non-divinity  of  Christ,  of  others  who  publicly 
asserted  predestination,  and  of  others  who  spread  the  doc- 
trine of  two  supreme  principles  of  good  and  evil,  as  well  as 
the  persecutions  of  Huss  and  Luther,  exemplify  in  ways 
almost  equally  familiar  the  denial  of  the  right  to  utter 
opinions  contrary  to  those  which  are  authorized.  And  so, 
in  our  country,  has  it  been  from  the  time  when  Henry  lY. 
enacted  severe  penalties  on  teachers  of  heresy,  down  to 
the  17th  century  when  the  non-conforming  clergy  were 
punished  for  teaching  any  other  than  the  church  doctrine 
and  Bunyan  was  imprisoned  for  open-air  preaching — down, 
further,  to  the  last  trial  for  propagating  atheism,  which  is 
within  our  own  recollection.  But  gradually,  during  recent 
centuries,  the  right  of  free  speech  on  religious  matters, 
more  and  more  asserted,  has  been  more  and  more  admitted; 
until  now  there  is  no  restraint  on  the  public  utterance 
of  any  religious  opinion,  unless  the  utterance  is  gratuitously 
insulting  in  manner  or  form. 

By  a  parallel  progress  there  has  been  established  that 
right  of  free  speech  on  political  questions,  which  in  early 
days  was  denied.  Among  the  Athenians  in  Solon's  time, 
death  was  inflicted  for  opposition  to  a  certain  established 
policy  ;  and  among  the  Romans  the  utterance  of  proscribed 
opinions  was  punished  as  treason.  So,  too,  in  England  cen- 
turies ago,  political  criticism,  even  of  a  moderate  kind,  brought 
severe  penalties.  Later  times  have  witnessed,  now  greater 
liberty  of  speech  and  now  greater  control :  the  noticeable  fact 


146  JUSTICE. 

being  that  during  tlie  war-period  bronglit  on  by  the 
French  revolution,  there  was  a  retrograde  movement  in 
respect  of  this  right  as  iu  respect  of  other  rights.  A  judge, 
in  1808,  declared  that  "it  was  not  to  be  permitted  to  any 
man  to  make  the  people  dissatisfied  with  the  Government 
under  which  he  lives."  But  with  the  commencement  of  the 
long  peace  there  began  a  decrease  of  the  restraints  on 
political  speech,  as  of  other  restraints  on  freedom.  Though 
Sir  F.  Burdett  was  impi-isoned  for  condemning  the  inhuman 
acts  of  the  troops,  and  Leigh  Hunt  for  commenting  on 
excessive  flogging  in  the  army,  since  that  time  there  have 
practically  disappeared  all  impediments  to  the  public 
expression  of  political  ideas.  So  long  as  he  does  not 
suggest  the  commission  of  crimes,  each  citizen  is  free  to  say 
what  he  pleases  about  any  or  all  of  our  institutions  :  even  to 
the  advocacy  of  a  form  of  government  utterly  different  from 
that  which  exists,  or  the  condemnation  of  all  government. 

Of  course,  with  increasing  recognition  of  the  right  of  free 
speech  there  has  gone  increasing  recognition  of  the  right 
of  free  publication.  Plato  taught  that  censors  were 
needful  to  prevent  the  diffusion  of  unauthorized  doctrines. 
With  the  growth  of  ecclesiastical  power  there  came  the 
suppression  of  writings  considered  heretical.  In  our  own 
country  under  Queen  Elizabeth,  books  had  to  be  oflBcially 
authorized  ;  and  even  the  Long  Parliament  re-enforced  that 
system  of  licensing  against  which  Milton  made  his  cele- 
brated protest.  But  for  these  two  centuries  there  has  been 
no  official  censorship,  save  of  public  plays.  And  though  many 
arrangements  for  shackling  the  press  have  since  been  made, 
yet  these  have  gradually  fallen  into  disuse  or  been  repealed. 

§  79.  But  in  this  case,  as  in  cases  already  noticed,  it 
follows  from  the  precedence  which  the  preservation  of  the 
society  has  over  the  claims  of  the  individual,  that  such 
restraints  may  rightly  be  put  on  free  speech  and  free  pub- 
lication as  are  needful  during  war  to  prevent  the  giving  of 


THE    RIGHTS   OP    FREE    SPEECH    AND    PUBLICATION.  147 

advantage  to  the  enemy.  If,  as  we  liavo  seen,  there  is 
Bthical  justification  for  subordinating  the  more  important 
rights  of  the  citizen  to  the  extent  requisite  for  successfully- 
carrying  on  national  defence,  it  of  course  follows  that  these 
less  important  rights  may  also  be  subordinated. 

And  here,  indeed,  we  see  again  how  direct  is  the  con- 
nexion between  international  hostilities  and  the  repression 
of  individual  freedom.  For  it  is  manifest  that  throughout 
civilization  the  repression  of  freedom  of  speech  and  freedom 
of  publication,  has  been  rigorous  in  proportion  as  militancy 
has  been  predominant;  and  that  at  the  present  time,  in  such 
contrasts  as  that  between  Russia  and  England,  we  still 
observe  the  relation. 

After  recognizing  the  justifiable  limitations  of  these 
rights,  that  which  it  concerns  us  to  note  is  that  they,  in 
common  with  the  others  severally  deduced  from  the  law  of 
equal  freedom,  have  come  to  be  recognized  in  law  as  fast  as 
society  has  assumed  a  higher  form. 


CHAPTER  XIX. 

A  EETEOSPECT  WITH  AN  ADDITION. 

§  80.  Where  men's  natures  and  their  institutions  are 
incongruous,  there  exists  a  force  tending  to  produce 
change.  Either  the  institutions  will  remould  the  nature 
or  the  nature  will  remould  the  institutions,  or  partly  the 
one  and  partly  the  other;  and  eventually  a  more  stable 
state  will  establish  itself. 

In  our  own  case  the  action  and  reaction  between  our 
social  arrangements  and  our  characters,  has  produced  a 
curious  result.  Compromise  being  an  essential  trait  of 
the  one  has  become  agreeable  to  the  other;  so  that  it  is 
not  only  tolerated  but  preferred.  There  has  grown  up  a 
distrust  of  definite  conclusions,  and  a  positive  aversion  to 
system.  Naturally,  statesmen  and  citizens  who,  on  the  one 
hand,  unite  in  declaring  the  sovereignty  of  the  people,  and 
who,  on  the  other  hand,  dutifully  write  and  complacently 
read  royal  speeches  which  address  Lords  and  Commons  as 
servants,  and  speak  of  the  people  as  "  my  subjects,'^  must  be 
impatient  of  any  demand  for  consistency  in  their  political 
ideas.  If,  while  they  assert  the  right  of  private  judgment 
in  religious  matters,  they  tacitly  authorize  parliament  to 
maintain  a  creed  for  them,  they  must  be  restive  when 
asked  how  they  recor.cile  their  theory  with  their  practice. 
Hence,  in  presence  of  the  many  instances  in  which  they 
have  to  accept  contradictory  doctrines,  they  become  averse 


A    KETROSPECT    WITH   AN    ADDITION.  149 

to  exact  tliinking,  resent  all  attempts  to  tie  tliem  do-wn  to 
precise  propositions,  and  shrink  from  an  abstract  principle 
with  as  much  alarm  as  a  servant  girl  shrinks  from  some- 
thing she  takes  for  a  ghost. 

An  ingrained  "way  of  thinking  and  feeling  thus  generated 
by  social  conditions,  is  not  to  be  changed  by  any  amount  of 
reasoning.  Beliefs  at  variance  with  it  cannot  gain  much 
acceptance.  Readers  in  whom  the  separate  arguments 
contained  in  foregoing  chapters  have  failed  to  produce 
changes  of  opinions,  will  not  have  their  opinions  changed 
by  bringing  together  these  arguments  and  showing  that 
they  converge  to  the  same  conclusion.  Still,  before  pro- 
ceeding, it  will  be  as  well  to  show  how  strong  are  the 
united  proofs  of  the  propositions  from  which  inferences 
are  presently  to  be  drawn. 

§  81.  We  have  no  ethics  of  nebular  condensation,  or  of 
sidereal  movement,  or  of  planetary  evolution :  the  concep- 
tion is  not  relevant  to  inorganic  actions.  Nor,  when  we 
turn  to  organized  things,  do  we  find  that  it  has  any  rela- 
tion to  the  phenomena  of  plant-life :  though  we  ascribe  to 
plants  superiorities  and  inferiorities,  leading  to  successes 
and  failures  in  the  struggle  for  existence,  we  do  not 
associate  with  them  praise  and  blame.  It  is  only  with 
the  rise  of  sentiency  in  the  animal  world,  that  the  subject 
matter  of  ethics  originates.  Hence  ethics,  pre-supposing 
animal  life,  and  gaining  an  appreciable  meaning  as  animal 
life  assumes  complex  forms,  must,  in  its  ultimate  nature,  be 
expressible  in  terms  of  animal  life.  It  is  concerned  with 
certain  traits  in  the  conduct  of  life,  considered  as  good  or 
bad  respectiv^ely  ;  and  it  cannot  pass  judgments  on  these 
traits  in  the  conduct  of  life  while  ignoring  the  essential 
phenomena  of  life. 

In  the  chapter  on  ''Animal  Ethics"  this  connexion  was 
shown  under  its  concrete  form.  "We  saw  that,  limiting  our 
attention  to  any  one  species,  the  continuance  of  which  is 


150  JUSTICE. 

held  to  be  desirable,  tben,  relatively  to  that  species^  tbe 
acts  wbicb  subserve  the  maintenance  of  tbe  individual  and 
the  preservation  of  the  race,  are  classed  by  us  as  right  and 
regarded  with  a  certain  approbation  ;  while  we  have  repro- 
bation for  acts  having  contrary  tendencies.  In  the  next 
chapter,  treating  of  ''  Sub-human  Justice,^'  we  saw  that, 
for  achievement  of  the  assumed  desirable  end,  a  condition 
precedent  is  that  each  individual  shall  receive  or  suffer 
the  good  or  evil  results  of  its  own  nature  and  consequent 
actions.  We  saw,  also,  that  throughout  the  lower  animal 
world,  where  there  exists  no  power  by  which  this  condition 
precedent  can  be  traversed,  it  eventuates  in  survival  of  the 
fittest.  And  we  further  saw  that,  since  this  connexion 
between  conduct  and  consequence  is  held  to  be  just,  it 
follows  that  throughout  the  animal  kingdom  what  we  call 
justice,  is  the  ethical  aspect  of  this  biological  law  in  virtue 
of  which  life  in  general  has  been  maintained  and  has 
evolved  into  higher  forms;  and  which  therefore  possesses 
the  highest  possible  authority. 

Along  with  the  establishment  of  gregarious  habits 
there  arises  a  secondary  law.  When  a  number  of  indi- 
viduals live  in  such  proximity  that  they  are  severally  apt 
to  impede  one  another's  actions,  and  so  to  prevent  one 
another  from  achieving  desired  results;  then,  to  avoid 
antagonism  and  consequent  dispersion,  their  actions  have 
to  be  mutually  restrained  :  each  must  carry  on  its  actions 
subject  to  the  limitation  that  it  shall  not  interfere  with 
the  like  actions  of  others  more  than  its  own  actions  are 
interfered  with.  And  we  saw  that  among  various  gre- 
garious creatures  considerable  observance  of  such  restraints 
is  displayed. 

Finally,  in  the  chapter  on  "Human  Justice,"  it  was 
shown  that  among  men,  the  highest  gregarious  creatures, 
this  secondary  law,  prefigured  in  a  vague  way  among  lower 
gregarious  creatures,  comes  to  have  more  pronounced,  more 
definite,  and  more  complex  applications.     Under  the  con- 


A   RETKOSPECT    WITH    AN    ADDITION.  151 

ditions  imposed  by  social  life,  the  pi'imary  principle  of 
justice,  -when  asserted  for  eacli  individual,  itself  originates 
the  secondary  or  limiting  principle  by  asserting  it  for  all 
other  individuals;  and  thus  the  mutual  restrictions  -wliicli 
simultaneous  carrying  on  of  their  actions  necessitate  form 
a  necessary  element  of  justice  in  the  associated  state. 

§  82.  Adaptation,  either  by  the  direct  or  by  the  indirect 
process,  or  by  both,  holds  of  cerebral  structures  as  of  the 
structures  composing  the  rest  of  the  body ;  and  mental 
functions,  like  bodily  functions,  tend  ever  to  become 
adjusted  to  the  requirements.  A  feeling  which  prompts 
the  maintenance  of  freedom  of  action  is  shown  by  all 
creatures,  and  is  marked  in  creatures  of  high  organization; 
and  these  last  also  show  some  amount  of  the  feeling  which 
responds  to  the  requirement  that  each  shall  act  within  the 
limits  imposed  by  the  actions  of  others. 

Along  with  greater  power  of  "  looking  before  and 
after,"  there  exist  in  mankind  higher  manifestations  of 
both  of  these  traits — clear  where  the  society  has  long  been 
peaceful  and  obscured  where  it  has  been  habitually  war- 
like. Where  the  habits  of  life  have  not  entailed  a  chronic 
conflict  between  the  ethics  of  amity  and  the  ethics  of 
enmity,  a  distinct  consciousness  of  justice  is  shown ;  alike 
in  respect  of  personal  claims  and  the  correlative  claims  of 
others.  But  where  men's  rights  to  life,  liberty,  and  pro- 
perty, are  constantly  subordinated  by  forcibly  organizing 
them  into  armies  for  more  effectual  fighting,  and  where  by 
implication  they  are  accustomed  to  trample  on  the  rights  of 
men  who  do  not  inhabit  the  same  territory,  the  emotions 
and  ideas  corresponding  to  the  principles  of  justice,  egoistic 
and  altruistic,  are  habitually  repressed. 

But  subject  to  this  qualification,  associated  life,  which  in 

a  predominant  degree  fosters  the  sympathies,  and  while  it 

:   gives  play   to  the  sentiment  of  egoistic  justice    exercises 

also  the  sentiment  of  altruistic  justice,  generates  correla- 


152  JUSTICE. 

tive  ideas ;  so  that  in  course  of  time,  along  witli  a  moral 
consciousness  o£  tlie  claims  of  self  and  otters,  there  comes 
an  intellectual  perception  of  them.  There  finally  arise 
intuitions  corresponding  to  those  requirements  which  must 
be  fulfilled  before  social  activities  can  be  harmoniously- 
carried  on ;  and  these  intuitions  receive  their  most  abstract 
expression  in  the  assertion  that  the  liberty  of  each  is  limited 
only  by  the  like  liberties  of  all. 

Hence  we  get  a  double  deductive  origin  for  this  funda- 
mental principle.  It  is  primarily  deducible  from  the 
conditions  precedent  to  complete  life  in  the  associated 
state;  and  it  is  secondarily  deducible  from  those  forms 
of  consciousness  created  by  the  moulding  of  human  nature 
into  conformity  with  these  conditions. 

§  83.  The  conclusions  thus  reached  by  deduction  agree 
with  the  conclusions  which  induction  has  led  us  to.  Ac- 
cumulated experiences  have  prompted  men  to  establish 
laws  harmonizing  with  the  various  corollaries  which  follow 
from  the  principle  of  equal  freedom. 

Thougb  disregarded  during  war,  life  during  peace  has 
acquired  sacredness ;  and  all  interferences  with  physical 
integrity,  however  trivial,  have  come  to  be  regarded  as 
offences.  The  slavery  which  in  early  stages  almost  every- 
where existed,  has,  with  the  advance  of  civilization,  been 
gradually  mitigated;  and,  in  the  most  advanced  societies, 
restraints  on  motion  and  locomotion  have  disappeared. 
Men's  equal  claims  to  unimpeded  use  of  light  and  air, 
originally  ignored,  are  now  legally  enforced;  and,  though i 
during  great  predominance  of  militant  activity  the  owner- 
ship of  land  by  the  community  lapsed  into  ownership  by 
chiefs  and  kings,  yet  now,  with  the  development  of  in- 
dustrialism, the  truth  that  the  private  ownership  of  land  is 
subject  to  the  supreme  ownership  of  the  community,  and 
that  therefore  each  citizen  has  a  latent  claim  to  participate 
in  the  use  of  the  Earth,  has  come  to  be  recognized.     The 


A   EETEOSPECT   WITH    AN    ADDITION.  153 

right  of  property,  invaded  witli  small  scruple  in  early  times, 
when  the  i-ights  to  life  and  liberty  were  little  rcgai'ded, 
has  been  better  and  better  maintained  as  societies  have 
advanced ;  and  while  law  has  with  increasing  efTiciency 
maintained  the  right  to  material  property,  it  has  more  and 
more  in  modern  times  recognized  and  maintained  the  rights 
to  incorporeal  property :  patent  laws,  copyright  laws,  libel 
laws,  have  been  progressively  made  more  effectual. 

Thus  while,  in  uncivilized  societies  and  in  eax-ly  stages 
of  civilized  societies,  the  individual  is  left  to  defend  his  own 
life,  liberty,  and  property  as  best  he  may,  in  later  stages 
the  community,  through  its  government,  more  and  more 
undertakes  to  defend  them  for  him.  Consequently,  unless 
it  be  asserted  that  primitive  disorder  was  better  than  is 
the  comparative  order  now  maintained,  it  must  be  admitted 
that  experience  of  results  justifies  the  assertion  of  these 
chief  rights,  and  endorses  the  arguments  by  which  they 
are  deduced.    ,, 

§  84.  Of  kindred  nature  and  significance  is  an  accom- 
panying endorsement.  While  the  community  in  its  corporate 
capacity  has  gradually  assumed  the  duty  of  guarding  the 
rights  of  each  man  from  aggressions  by  other  men,  it  has 
gradually  ceased  from  invading  his  rights  itself  as  it 
once  did. 

/^Avaong  uncivilized  peoples,  and  among  the  civilized  in 
early  times,  the  right  of  bequest  has  been  either  denied 
(here  by  custom  and  there  bylaw)  or  else  greatly  restricted ; 
but  with  the  growth  of  industrialism  and  its  appropriate 
social  forms,  restrictions  on  the  right  of  bequest  have 
diminished,  and  in  the  most  industrially  organized  nations 
have  almost  disappeared.  In  rude  societies  the  ruler 
habitually  interferes  with  the  right  of  free  exchange — 
monopolizing,  restraining,  interdicting;  but  in  advanced 
societies  internal  exchanges  are  much  less  interfered 
with,  and  in  our  own  society  very  little  interference  even 


154  JUSTICE. 

with  external  exchanges  remains.  During  many  centuries 
throughout  Europe,  the  State  superintended  industry,  and 
men  were  told  what  processes  they  must  adopt  and  what 
things  they  must  produce ;  but  now,  save  by  regulations 
for  the  protection  of  employes,  their  rights  to  manufacture 
what  they  please  and  how  they  please  are  uninterf  ered  with. 
Originally,  creeds  and  observances  were  settled  by  autho- 
rity ;  but  the  dictations  have  slowly  diminished,  and  at 
present,  in  the  most  advanced  societies,  every  one  may 
believe  or  not  believe,  worship  or  not  worship,  as  he  likes. 
And  so,  too,  is  it  with  the  rights  of  free  speech  and  publi- 
cation :  originally  denied  and  the  assumption  of  them 
punished,  they  have  gradually  acquired  legal  recognition. 

Simultaneously,  governments  have  also  ceased  to  inter-  j 
fere  with  other  classes  of  private  actions.     Once  upon  a  i 
time    they   prescribed   kinds    and    qualities    of    food    and  | 
numbers  of  meals.     To  those  below  specified  ranks  they 
forbad  certain  colours  for  dresses,  the  wearing  of  furs,  the 
use  of  embroideries  and  of  lace ;  while  the  weapons  they  ; 
might  wear  or  use  were  named.     Those  who  might,  and  ; 
those  who  might  not,  have  silver  plate  were  specified ;  as  : 
also  those  who  might  wear  long  hair.     Nor  were  amuse- 
ments left  uncontrolled.     Games  of  sundry  kinds  were  in 
some  cases  prohibited,  and  in  other  cases  exercises  were 
prescribed.     But  in  modern  times  these  interferences  with 
individual  freedom  have  ceased :    men's  rights    to    choose  ' 
their  own  usages  have  come  to  be  tacitly  admitted. 

Here  again,  then,  unless  it  be  maintained  that  sumptuary  , 
laws  and  the  like  should  be  re-enacted,  and  that  freedom  of  | 
bequest,  freedom  of  exchange,  fi^eedom  of  industry,  freedom 
of  belief,  and  freedom  of  speech,  might  with  advantage  be 
suppressed ;  it  must  be  admitted  that  the  inferences  drawn 
from  the  formula  of  justice  have  been  progressively  justified 
by  the  discovery  that  disregard  of  them  is  mischievous. 

§  85.  Yet  another  series  of  inductive  verifications,  not 


A   EETROSPECT    WITH    AN   ADDITION.  155 

hitlierto  named,  lias  to  be  set  down — the  verifications 
furnisbed  by  political  economy. 

This  teaclies  that  meddlings  with  commerce  by  prohibi- 
tions and  bounties  are  detrimental ;  and  the  law  of  equal 
freedom  excludes  them  as  wrong.  That  speculators  should 
be  allowed  to  operate  on  the  food-markets  as  they  see  well 
is  an  inference  drawn  by  political  economy;  and  by  the 
fundamental  principle  of  equity  they  are  justified  in  doing 
this.  Penalties  upon  usury  are  proved  by  political  econo- 
mists to  be  injui'ions ;  and  by  the  law  of  equal  freedom  they 
are  negatived  as  involving  infringements  of  rights.  The 
reasonings  of  political  economists  show  that  machinery  is 
beneficial  to  the  people  at  large,  instead  of  hurtful  to  them; 
and  in  unison  with  their  conclusions  the  law  of  equal 
freedom  forbids  attempts  to  restrict  its  use.  While  one  of 
the  settled  conclusions  of  political  economy  is  that  wages 
and  prices  cannot  be  artificially  regulated  with  advantage,  it 
is  also  an  obvious  inference  from  the  law  of  equal  freedom 
that  regulation  of  them  is  not  morally  permissible.  On 
other  questions,  such  as  the  hurtfulness  of  tamperings  with 
banking,  the  futility  of  endeavours  to  benefit  one  occupa- 
tion at  the  expense  of  others,  political  economy  reaches 
conclusions  which  ethics  independently  deduces. 

What  do  these  various  instances  unite  in  showing  ? 
Briefly,  that  not  only  harmony  of  co-operation  in  the  social 
state,  but  also  eflciency  of  co-operation,  is  best  achieved  by 
conformity  to  the  law  of  equal  freedom. 

§  80.  Two  deductive  arguments  and  three  inductive 
arguments  thus  converge  to  the  same  conclusion.  By  infer- 
ence from  the  laws  of  life  as  carried  on  under  social  condi- 
tions, and  by  inference  from  the  dicta  of  that  moral  con- 
sciousness generated  by  the  continuous  discipline  of  social 
life,  we  are  led  directly  to  recognize  the  law  of  equal 
freedom  as  the  supreme  moral  law.  And  we  are  indirectly 
led  to  such  recognition  of  it  by  generalizing  the  experiences 


156  JUSTICE. 

of  mankiud  as  registered  in  progressive  legislation;  since 
by  it  we  are  shown  tliat  during  civilization  there  has  been 
a  gradual  increase  in  the  governmental  maintenance  of  the 
rights  of  individuals^  and  that  simultaneously  there  has 
been  a  gradual  decrease  in  the  governmental  trespasses 
on  such  rights.  And  then  this  agreement  is  reinforced 
by  the  proofs  that  what  is  theoretically  equitable  is 
economically  expedient. 

I  am  by  no  means  certain  that  acceptance  of  this  quintu- 
ply-rooted  truth  will  be  rendered  any  the  more  likely  by 
thus  showing  that  the  a  'posteriori  supports  of  it  furnished 
by  history  are  joined  with  the  a  priori  supports  furnished 
by  biology  and  psychology.  If  there  are  a  priori  thinkers 
who  obstinately  disregard  experiences  at  variance  with 
their  judgments;  there  are  also  a  posteriori  thinkers  who 
obstinately  deny  all  value  to  intuitive  beliefs.  They  have 
faith  in  the  cognitions  resulting  from  the  accumulated 
experiences  of  the  individual,  but  no  faith  in  the  cognitions 
resulting  from  the  accumulated  experiences  of  the  race. 
Here,  however,  we  avoid  both  kinds  of  bigotry.  The 
agreement  of  deduction  with  induction  yields  the  strongest 
proof ;  and  where,  as  in  this  case,  we  have  plurality  of  both 
deductions  and  inductions,  there  is  reached  as  great  a 
certainty  as  can  be  imagined. 


CHAPTER  XX. 

THE   EIGHTS   OF   WOMEN. 

§  87.  Wlien  in  certain  preceding  cliaptcvs  the  funda- 
mental principle  of  justice  was  discussed,  a  relevant 
question  wliich  miglit  have  been  raised,  I  decided  to 
]  postpone,  because  I  tbouglit  discussion  of  it  would  appro- 
i  priately  introduce  the  subject-matter  of  this  chapter. 

"  Why,^'  it  might  have  been  asked,  ''  should  not  men 
have  rights  proportionate  to  their  faculties  ?  Why  should 
not  the  sphere  of  action  of  the  superior  individual  be 
greater  than  that  of  the  inferior  individual  ?  Surely,  as  a 
big  man  occupies  more  space  than  a  little  man,  so  too  does 
he  need  larger  supplies  of  the  necessaries  of  life ;  and  so, 
too,  does  he  need  greater  scope  for  the  use  of  his  powers. 
Hence  it  is  unreasonable  that  the  activities  of  great  and 
smalb  strong  and  weak,  high  and  low,  should  be  severally 
restrained  within  limits  too  narrow  for  these  and  too  wide 
for  those." 

The  first  reply  is  that  the  metaphors  which  we  are 
obliged  to  use  are  misleading  if  interpreted  literally. 
Though,  as  above,  and  as  in  previous  chapters,  men's 
equal  Hberties  are  figured  as  spaces  surrounding  each, 
which  mutually  limit  one  another,  yet  they  cannot  be  truly 
represented  in  so  simple  a  manner.  The  inferior  man, 
who   claims  as  great  a  right   to  bodily  integrity  as  the 


158  JUSTICE. 

superior  man^  does  not  by  doing  tliis  trespass  on  tlie 
bodily  integrity  of  tlie  superior  man.  If  be  asserts  like 
freedom  witb  bim  to  move  about  and  to  work,  be  does  not 
tbereby  prevent  bim  from  moving  about  and  working. 
And  if  be  retains  as  bis  own  wbatever  bis  activities  bare 
gained  for  bim,  be  in  no  degree  prevents  tbe  superior  man 
from  retaining  tbe  produce  of  bis  activities,  wbicb,  by 
implication,  are  greater  in  amount. 

Tbe  second  reply  is  tbat  denying  to  inferior  faculty  a 
spbere  of  action  equal  to  tbat  wbicb  superior  faculty  bag, 
is  to  add  an  artificial  bardsbip  to  a  natural  bardsbip.  To 
be  born  witb  a  dwarfed  or  deformed  body,  or  imperfect 
senses,  or  a  feeble  constitution,  or  a  low  intelligence,  or  ill- 
balanced  emotions,  is  in  itself  a  pitiable  fate.  Could  we : 
cbarge  Nature  witb  injustice,  we  migbt  fitly  say  it  is  unjust 
tbat  some  sbould  bave  natural  endowments  so  mucb  lower 
tban  otbers  bave,  and  tbat  tbey  sbould  tbus  be  in  large 
measure  incapacitated  for  tbe  battle  of  life.  And  if  so, 
wbat  sball  we  say  to  tbe  proposal  tbat,  being  already  dis- 
advantaged by  baving  smaller  powers,  tbey  sbould  be 
furtber  disadvantaged  by  having  narrower  spberes  for  tbe 
exercise  of  tbose  powers?  Sympathy  migbt  contrariwise! 
urge  tbat,  by  way  of  compensation  for  inherited  dis- 
abilities, they  sbould  bave  extended  opportunities.  But, 
evidently,  the  least  that  can  be  done  is  to  allow  tbem  as 
mucb  freedom  as  otbers  to  make  tbe  best  of  themselves. 

A  tbird  reply  is  tbat,  were  it  equitable  to  make  men's ; 
bberties  proportionate  to  tbeir  abilities,  it  would  be  im-! 
practicable;  since  we  bave  no  means  by  wbicb  eitber, 
tbe  one  or  tbe  otber  can  be  measured.  In  tbe  great 
mass  of  cases  there  is  no  difficulty  in  carrying  out  tbe 
principle  of  equality.  If,  (previous  aggression  being  sup- 
posed absent,)  A  kills  B,  or  knocks  bim  down,  or  locks 
bim  up,  it  is  clear  tbat  the  liberties  of  action  assumed 
by  tbe  two  are  unlike;  or  if  C,  having  bought  goods 
of  D,   does  not    pay  tbe   price    agreed    upon,    it   is   clear 


THE    EIGHTS    OP   WOMEN.  169 

that  the  contract  having  been  fulfilled  on  one  side  and 
not  on  the  other,  the  degrees  of  freedom  used  are  not 
the  same.  But  if  liberties  are  to  bo  proportioned  to 
abilities,  then  the  implication  is  that  the  relative  amounts 
of  each  faculty,  bodily  and  mental,  must  be  ascertained ; 
and  the  further  implication  is  that  the  several  kinds  of 
freedom  needed  must  bo  meted  out.  Neither  of  these 
things  can  be  done ;  and  therefore,  apart  from  other 
reasons,  the  regard  for  practicability  would  require  us 
to  treat  men's  freedoms  as  equal,  irrespective  of  their 
endowments. 

§  88.  With  change  of  terms  these  arguments  are 
applicable  to  the  relation  between  the  rights  of  men 
and  the  rights  of  women.  This  is  not  the  place  for 
comparing  in  detail  the  capacities  of  men  and  women. 
It  suffices  for  present  purposes  to  recognize  the  unques- 
tionable fact  that  some  women  are  physically  stronger 
than  some  men,  and  that  some  women  have  higher  mental 
endowments  than  some  men — ^higher,  indeed,  than  the 
great  majority  of  men.  Hence  it  results,  as  above,  that 
were  liberties  to  be  adjusted  to  abilities,  the  adjustment, 
even  could  we  make  it,  would  have  to  be  made  irrespective 
of  sex. 

The  difficulty  reappears  under  another  form,  if  we  set 
out  with  the  proposition  that  just  as,  disregarding  excep- 
tions, the  average  physical  powers  of  women  are  less 
than  the  average  physical  powers  of  men,  so  too  are  their 
average  mental  powers.  For  we  could  not  conform  our 
plans  to  this  truth :  it  would  be  impossible  to  ascertain  the 
ratio  between  the  two  averages  ;  and  it  would  be  impossible 
rightly  to  proportion  the  spheres  of  activity  to  them. 

But,  as  above  ai-gued,  generosity  prompting  equalization 
would  direct  that  were  any  difference  to  be  made  it  ought 
to  be  that,  by  way  of  compensation,  smaller  faculties  should 
have  greater  facilities.     Generosity  aside  however,  justice 


IGO  JUSTICE. 

demands  tlie  women,  if  tliey  are  not  artificially  advantaged, 
must  not,  at  any  rate,  be  artificially  disadvantaged. 

Hence,  if  men  and  women  are  severally  regarded  as 
independent  members  of  a  society,  eacb  one  of  whom  lias 
to  do  tlie  best  for  liimself  or  lierself,  it  results  that  no 
restraints  can  equitably  be  placed  upon  women  in  respect 
of  the  occupations,  professions,  or  other  careers  which  they 
may  wish  to  adopt.  They  must,  have  like  freedom  to 
prepare  themselves,  and  like  freedom  to  profit  by  such 
information  and  skill  as  they  acquire. 

But  more  involved  questions  arise  when  we  take  into 
account  the  relations  of  women  to  men  in  marriage,  and 
the  relations  of  women  to  men  in  the  State. 

§  89.  Of  those  equal  liberties  with  men  which  women 
should  have  before  marriage,  we  must  say  that  in  equity 
they  retain  after  marriage  all  those  which  are  not  neces- 
sarily interfered  with  by  the  marital  relation — the  rights  to 
physical  integrity,  the  rights  to  ownership  of  property 
earned  and  property  given  or  bequeathed,  the  rights  to  free 
belief  and  free  speech,  &c.  Their  claims  can  properly  be 
qualified  only  in  so  far  as  they  are  traversed  by  the  under- 
stood or  expressed  terms  of  the  contract  voluntarily  entered 
into;  and  as  these  terms  vary  in  different  places  and  times, 
the  resulting  qualifications  must  vary.  Here,  in  default  of 
definite  measures,  we  must  be  content  with  approximations. 
In  respect  of  property,  for  instance,  it  may  be  reasonably 
held  that  where  the  husband  is  exclusively  responsible  for 
maintenance  of  the  family,  property  which  would  otherwise 
belong  to  the  wife  may  equitably  be  assigned  to  him — ^the 
use,  at  least,  if  not  the  possession ;  since,  if  not,  it  becomes 
possible  for  the  wife  to  use  her  property  or  its  proceeds  for 
her  personal  benefit  only,  and  refuse  to  contribute  towards 
the  expenses  of  the  joint  household.  Only  if  she  is  equally 
responsible  with  him  for  family-maintenance,  does  it  seem 
right  that  she  should  have  equally  unqualified  ownership  ol 


THE    RIGHTS   OF   WOMEN.  161 

property.  Yet^  on  tlie  otlier  hand,  we  cannot  say  that  the 
responsibilities  must  be  entirely  reciprocal.  Fur  though, 
rig-hts  of  ownership  being  supposed  equal,  it  would  at  first 
sight  appear  that  the  one  is  as  much  bound  as  the  other  to 
maintain  the  two  and  their  children ;  yet  this  is  negatived 
by  the  existence  on  the  one  side  of  onerous  functions  which 
do  not  exist  on  the  other,  and  which  largely  incapacitate 
for  active  life.  Nothing  more  than  a  compromise,  varying 
according  to  the  circumstances,  seems  here  possible.  The 
discharge  of  domestic  and  maternal  duties  by  the  wife  may 
ordinarily  be  held  a  fair  equivalent  for  the  earning  of  an 
income  by  the  husband. 

Respecting  powers  of  control  over  one  another's  actions 
and  over  the  household,  the  conclusions  to  be  drawn  are 
still  more  indefinite.  The  relative  positions  of  the  two  as 
contributors  of  monies  and  services  have  to  be  taken  into 
account,  as  well  as  their  respective  natures ;  and  these 
factors  in  the  problem  are  variable.  When  there  arise 
conflicting  wills  of  which  both  cannot  be  fulfilled,  but  one 
of  which  must  issue  in  action,  the  law  of  equal  freedom 
cannot,  in  each  particular  case,  be  conformed  to ;  but  can 
be  conformed  to  only  in  the  average  of  cases.  Whether 
it  should  be  conformed  to  in  the  average  of  cases  must 
depend  on  circumstances.  We  may,  however,  say  that 
since,  speaking  generally,  man  is  more  judicially-minded 
than  woman,  the  balance  of  authority  should  incline  to  the 
side  of  the  husband;  especially  as  he  usually  provides  the 
means  which  make  possible  the  fulfilment  of  the  will  of 

.   either  or  the  wills  of  both.     But  in  respect  of  this  relation 
reasoning  goes  for  little  :  the  characters  of  those  concerned 

;  determine  the  form  it  takes.     The  only  effect  which  ethical 

i  considerations  are  likely  to  have  is  that  of  moderating  the 

[  ase  of  such  supremacy  as  eventually  arises. 

j  The  remaining  question,  equally  involved  or  more 
J '[  involved,  concerns  the  possession  and  management  of 
ii  children.     Decisions  about  management  have  to  be  made 


162  JUSTICE. 

daily ;  and  decisions  about  possession  must  be  made  in  all 
cases  of  separation.  What  are  the  relative  claims  of 
husband  and  wife  in  sucb  cases  ?  On  the  one  hand,  it  may 
be  said  of  the  direct  physical  claims,  otherwise  equal,  that 
that  of  the  mother  is  rendered  far  greater  by  the  continued 
nutrition  before  and  after  birth,  than  that  of  the  father. 
On  tlie  other  hand,  it  may  be  urged  on  the  part  of  the 
father,  that  in  the  normal  order  the  food  by  which  the 
mother  has  been  supported  and  the  nutrition  of  the  infant 
made  possible,  has  been  provided  by  his  labour.  Whether 
this  counter-claim  be  or  be  not  equivalent,  it  must  be 
admitted  that  the  claim  of  the  mother  cannot  well  be  less 
than  that  of  the  father.  Of  the  compromise  respecting 
management  which  justice  thus  appears  to  dictate,  we  may 
perhaps  reasonably  say  that  the  power  of  the  mother  may 
fitly  predominate  during  the  earlier  part  of  a  child's  life, 
and  that  of  the  father  during  the  later  part.  The  maternal 
nature  is  better  adjusted  to  the  needs  of  infancy  and  early 
childhood  than  the  paternal  nature ;  while  for  fitting  chil- 
dren, and  especially  boys,  for  the  battle  of  life,  the  father, 
who  has  had  most  experience  of  it,  may  be  considered  the 
best  guide.  But  it  seems  alike  inequitable  and  inexpedient 
that  the  power  of  either  should  at  any  time  be  exercised  to 
the  exclusion  of  the  power  of  the  other.  Of  the  respective 
claims  to  possession  where  separation  takes  place,  some 
guidance  is  again  furnished  by  consideration  of  children's  i 
welfare;  an  equal  division,  where  it  is  possible,  being  so 
made  that  the  younger  remain  with  the  mother  and  the  ■ 
elder  go  with  the  father.  Evidently,  however,  nothing  is 
here  possible  but  compromise  based  on  consideration  of 
the  special  circumstances. 

Concerning  the  claims  of  women,  as  domestically  asso- 
ciated with  men,  I  may  add  that  here  in  England, 
and  still  more  in  America,  the  need  for  urging  them  is 
not  pressing.  In  some  cases,  indeed,  there  is  a  converse 
need.     But    there   are    other    civilized    societies   in    which 


THE    KIGHTS    OF    WOMEU.  163 

tKeir   claims   are   very   inadequately  recognized :   instance 
Germany.* 

§  90.  As  in  other  cases,  let  us  look  now  at  tlie  stages 
tlirougli  which  usage  and  law  have  grown  into  conformity 
with  ethics. 

Save  among  the  few  primitive  peoples  who  do  not  preach 
the  virtues  called  Christian  but  merely  practise  them — save 
among  those  absolutely  peaceful  tribes  here  and  there 
found  who,  while  admirable  in  their  general  conduct,  treat 
their  women  with  equity  as  well  as  kindness,  uncivilized 
tribes  at  large  have  no  more  conception  of  the  rights  of 
women  than  of  the  rights  of  brutes.  Such  regard  for 
women's  claims  as  enables  mothers  to  survive  and  rear 
offspring,  of  course  exists ;  since  tribes  in  which  it  is  less 
than  this  disappear.  But,  frequently,  the  regard  is  not 
greater  than  is  needful  to  prevent  extinction. 

When  we  read  of  a  Fijian  that  he  might  kill  and  eat  his 
wife  if  he  pleased ;  of  the  Fuegians  and  wilder  Australians 
that  they  sacrificed  their  old  women  for  food;  and  of  the 
many  peoples  among  whom  women  are  killed  to  accompany 
their  dead  husbands  to  the  other  world ;  we  see  that  they 
are  commonly  denied  even  the  first  of  all  rights.  The  facts 
that  in  these  low  stages  women,  leading  the  lives  of  slaves, 
are  also  sold  as  slaves,  and,  when  married,  are  either  stolen 
or  bought,  prove  that  no  liberties  are  recognized  as  be- 
longing to  them.  And  on  remembering  that  where  wives 
are  habitually  considered  as  property,  the  implication  is 
that  independent  ownership  of  property  by  them  can 
scarcely  exist,  we  are  shown  that  this  further  fundamental 
right  is  at  the  outset  but  very  vaguely  recognized.    Though 

*  With  other  reasons  prompting  this  remark,  is  joined  the  remembrance 
of  a  conversation  between  two  Germans  residing  in  England,  in  which, 
with  contemptuous  laughter,  they  were  describing  how  tliey  had  often 
seen,  on  a  Sunday  or  other  holiday,  an  English  artizan  relieving  his  wife 
by  carrying  the  child  they  had  with  them.  Their  sneers  produced  in  me 
a  feeling  of  shame — but  not  for  the  artizan. 


164  JUSTICE. 

the  matter  is  in  many  cases  complicated  and  qualified  by 
the  system  of  descent  in  the  female  line^  it  is  certain  that, 
speaking  generally,  in  rude  societies  where  among  men 
aggression  is  restrained  only  by  fear  of  vengeance,  the 
claims  of  women  are  habitually  disregarded. 

To  trace  up  in  this  place  the  rising  status  of  women  is 
out  of  the  question.  Passing  over  those  ancient  societies 
in  which  descent  in  the  female  line  gave  to  women  a  rela- 
tively high  position,  as  it  did  among  the  Egyptians,  it  will 
suffice  to  note  that  in  societies  which  have  arisen  by 
aggregation  of  patriarchal  groups,  the  rights  of  women,  at 
first  scarcely  more  recognized  than  among  savages,  have, 
during  these  two  thousand  years,  gradually  established 
themselves.  Limiting  our  attention  to  the  Aryans  who  over- 
spread Eui'ope,  we  see  that  save  where,  as  indicated  by 
Tacitus,  women,  by  sharing  in  the  dangers  of  war,  gained 
a  better  position  (a  connexion  of  facts  which  we  find  among 
various  peoples),  they  were  absolutely  subordinated.  The 
primitive  Germans  bought  their  wives ;  and  husbands  might 
sell  and  even  kill  them.  In  the  early  Teutonic  society,  as 
in  the  early  Roman  society,  there  was  perpetual  tutelage  of 
women,  and  consequent  incapacity  for  independent  owner- 
ship of  property.  A  like  state  of  things  existed  here  in 
the  old  English  period.  Brides  were  purchased  :  their 
wills  counting  for  nothing  in  the  bargains.  Mitigations 
gradually  came.  Among  the  Romans  the  requirement  that 
a  bride  should  be  transferred  to  the  bridegroom  by  legal 
conveyance,  ceased  to  be  observed.  The  life  and  death 
power  came  to  an  end  :  though  sometimes  reappearing,  as 
when  the  early  Angevin  ruler,  Eulc  the  Black,  burnt  his 
wife.  Generalizing  the  facts  we  see  that  as  life  became 
less  exclusively  militant,  the  subjection  of  women  to  men 
became  less  extreme.  How  that  decline  of  the  system  of 
status  and  rise  of  the  system  of  contract,  which  characterizes' 
industrialism,  ameliorated,  in  early  days,  the  position  of 
women,   is    curiously  shown    by    the    occurrence   of   their 


THE    KIGnrS    OF    WOMEN.  165 

signatures  in  the  documents  of  guilds,  while  yet  their 
position  outside  of  the  guilds  remained  much  as  before. 
This  connexion  has  continued  to  be  a  general  one.  Both 
in  England  and  in  America,  where  the  industrial  type  of 
organization  is  most  developed,  the  legal  status  of  women 
is  higher  than  on  the  continent,  where  militancy  is  more 
pronounced.  Add  to  which  that  among  ourselves,  along 
■ftith  the  modern  growth  of  free  institutions  characterizing 
predominant  industrialism,  the  positions  of  women  have  been 
with  increasing  rapidity  approximated  to  those  of  men. 

Here  again,  then,  ethical  deductions  harmonize  with 
historical  inductions.  As  in  preceding  chapters  we  saw 
that  each  of  those  corollaries  from  the  law  of  equal  freedom 
which  we  call  a  right,  has  been  better  established  as  fast 
as  a  higher  social  life  has  been  reached ;  so  here,  we  see 
that  the  general  body  of  such  rights,  originally  denied 
entirely  to  women,  has,  in  the  course  of  this  same  progress, 
been  acquired  by  them. 

§  91.  There  has  still  to  be  considered  from  the  ethical 
point  of  view,  the  political  position  of  Avomen  as  compared 
with  the  political  position  of  men ;  but  until  the  last  of 
these  has  been  dealt  with,  we  cannot  in  a  complete  way 
deal  with  the  first.  When,  presently,  we  enter  on  the  con- 
sideration of  what  are  commonly  called  "  political  rights,^' 
we  shall  find  need  for  changing,  in  essential  ways,  the 
current  conceptions  of  them ;  and  until  this  has  been  done 
the  political  rights  of  women  cannot  be  adequately  treated 
of.  There  is,  however,  one  aspect  of  the  matter  which  we 
may  deal  with  now  no  less  conveniently  than  hereafter. 

Are  the  political  rights  of  women  the  same  as  those  of 
men  ?  The  assumption  that  they  are  the  same  is  now 
widely  made.  Along  with  that  identity  of  rights  above  set 
forth  as  arising  from  the  human  nature  common  to  the  two 
sexes,  there  is  supposed  to  go  an  identity  of  rights  in 
respect  to  the  direction  of  public  affairs.     At  first  sight 


166  JUSTICE. 

it  seems  that  the  two  properly  go  together;  but  con- 
sideration shows  that  this  is  not  so.  Citizenship  does  not 
inckide  only  the  giving  of  votes,  joined  now  and  again  with 
the  fulfilment  of  representative  functions.  It  includes  also 
certain  serious  responsibilities.  But  if  so,  there  cannot  be 
equality  of  citizenship  unless  along  with  the  share  of  good 
there  goes  the  share  of  evil.  To  call  that  equality  of 
citizenship  under  which  some  have  their  powers  gratis, 
while  others  pay  for  their  powers  by  undertaking  risks,  is 
absurd.  Now  men,  whatever  political  powers  they  may  in 
any  case  possess,  are  at  the  same  time  severally  liable  to 
the  loss  of  liberty,  to  the  privation,  and  occasionally  to  the 
death,  consequent  on  having  to  defend  the  country;  and  if 
women,  along  with  the  same  political  powers,  have  not  the 
same  liabilities,  their  position  is  not  one  of  equality  but  one 
of  supremacy. 

Unless,  therefore,  women  furnish  contingents  to  the  army 
and  navy  such  as  men  furnish,  it  is  manifest  that,  ethically 
considered,  the  question  of  the  equal  "political  rights,"  so- 
called,  of  women,  cannot  be  entertained  until  there  is 
reached  a  state  of  permanent  peace.  Then  only  will  it  be 
possible  (whether  desirable  or  not)  to  make  the  political 
positions  of  men  and  women  the  same. 

It  should  be  added  that  of  course  this  reason  does  not 
negative  the  claims  of  women  to  equal  shares  in  local 
governments  and  administrations.  If  it  is  contended 
that  these  should  be  withheld,  it  must  be  for  reasons  of 
other  kinds. 


CHAPTER  XXI. 

THE  EIGHTS  OF  CHILDREN. 

§  92.  The  reader  wlio  remembers  that  at  the  outset  we 
recognized  a  fundamental  distinction  between  the  ethics  of 
the  family  and  the  ethics  of  the  State,  and  saw  that  welfare 
of  the  species  requires  the  maintenance  of  two  antagonist 
principles  in  them  respectively,  will  infer  that  the  rights  of 
children  must  have  a  nature  quite  different  from  that  of  the 
rights  of  adults.  He  will  also  infer  that  since  children  are 
gradually  transformed  into  adults,  there  must  be  a  contin- 
ually changing  relation  between  the  two  kinds  of  rights, 
and  need  for  a  varying  compromise. 

'-  Preservation  of  the  race  implies  both  self-sustentation 
and  sustentation  of  offspring.  If,  assuming  preservation 
of  the  race  to  be  a  good  end,  we  infer  that  it  is  right  to 
achieve  these  two  sustentations;  and  if,  therefore,  the 
conditions  precedent,  without  which  they  cannot  be  achieved, 
become  what  we  call  rights ;  it  results  that  children  have 
rights  (or  rather,  for  distinction  sake,  let  us  say  rightful 
claims)  to  those  materials  and  aids  needful  for  life  and 
growth,  which,  by  implication,  it  is  the  duty  of  parents  to 
supply.  Whereas  during  mature  life,  the  rights  are  so 
many  special  forms  of  that  general  freedom  of  action  which 
is  requisite  for  the  procuring  of  food,  clothing,  shelter,  &c.; 
during  immature  life  the  rightful  claims  are  to  the  food, 
clothing,  shelter,  &c.,  themselves,  and  not  to  those  forms  of 


168  JUSTICE. 

freedom  which  make  possible  tlie  oLtainment  of  them. 
While  yet  its  faculties  are  undeveloped  the  child  cannot 
occupy  various  parts  of  the  sphere  of  activity  occupied  by 
the  adult.  During  this  stage  of  inability,  such  needful 
benefits  as  are  naturally  to  be  gained  only  within  these 
unusable  regions  of  activity,  must  come  to  it  gratis.  And, 
deduced  as  its  claims  to  them  are  from  the  same  primary 
requirement  (preservation  of  the  species),  they  must  be 
considered  as  equally  valid  witb  the  claims  which  the  adult 
derives  from  the  law  of  equal  freedom. 

I  use  the  foregoing  verbal  distinction  between  the  rights 
of  adults  and  the  rightful  claims  of  children,  because,  in  the 
general  consciousness,  rights  are  to  so  large  an  extent 
associated  with  activities  and  the  products  of  activities,  that 
some  confusion  of  thought  arises  if  we  ascribe  them  to 
infants  and  young  children,  who  are  incapable  of  carrying 
on  such  activities  and  obtaining  such  products. 

§  93.  Still  regarding  preservation  of  the  species  as  the 
ultimate  end,  we  must  infer  that  while  in  large  measure 
children's  rightful  claims  are  to  the  products  of  activities, 
rather  than  to  the  spheres  in  which  those  activities  are 
carried  on,  children  have,  at  the  same  time,  rightful  claims 
to  such  parts  of  those  spheres  of  activity  as  they  can 
advantageously  use.  For  if  the  desideratum  is  preservation 
of  the  species,  then,  to  achieve  it,  the  members  of  each 
generation  have  not  only  to  be  supplied  by  parents  with 
such  food,  clothing  and  shelter  as  are  requisite,  but  have 
also  to  receive  from  them  such  aids  and  opportunities  as, 
by  enabling  them  to  exercise  their  faculties,  shall  produce 
in  them  fitness  for  adult  life.  By  leading  their  young  ones 
to  use  their  limbs  and  senses,  even  inferior  creatures,  how- 
ever unconsciously,  fulfil  this  requirement  to  some  extent. 
And  if  for  the  comparatively  simple  lives  of  birds  and 
quadrupeds  such  needful  preparation  has  to  be  made,  still 
more  has  it  to  be  made  for  the  complex  lives  of  mankind, 


THE    EIGHTS    OF    CHILDKEN.  169 

and  still  more  does  there  follow  the  responsibility  of  pro- 
viding for  it  and  furthering  it. 

How  far  the  lives  of  parents  must,  in  the  due  discharge 
of  these  responsibilities,  be  subordinated  to  the  lives  of 
childi'en,  is  a  question  to  which  no  definite  answer  can  be 
given.  In  multitudinous  kinds  of  inferior  creatures,  each 
generation  is  completely  sacrificed  to  the  next :  eggs  having 
been  laid  the  parents  forthwith  die.  But  among  higher 
creatures,  which  have  to  give  much  aid  to  their  offspring 
while  they  grow,  or  which  rear  successive  broods  of  off- 
spring, or  both,  this  of  course  is  not  the  case.  Here  the 
welfare  of  the  species  demands  that  the  parents  shall  con- 
tinue to  live  in  full  vigour,  that  they  may  adequately 
nurture  their  offspring  during  their  periods  of  immaturity. 
This  is  of  course  especially  the  case  with  mankind ;  since 
the  period  over  which  aid  has  to  be  given  to  offspring  is 
very  long.  Hence,  in  estimating  the  relative  claims  of  child 
and  parent,  it  is  inferable  that  parental  sacrifices  must 
not  be  such  as  will  incapacitate  for  the  full  performance  of 
parental  duties.  Undue  sacrifices  are  eventually  to  the  dis- 
advantage of  the  offspring,  and,  by  implication,  to  the  dis- 
advantage of  the  species.  To  which  add  that,  since  the 
well-being  and  happiness  of  parents  is  itself  an  end  which 
'  forms  part  of  the  general  end,  there  is  a  further  ethical 
':  reason  why  the  self-subordination  of  parents  must  be  kept 
within  moderate  limits. 

§  94.  From  the  rightful  claims  of  children  on  parents, 

we  pass    now   to   the   correlative  duties    of   children    to 

parents.     As   before   we   must    be   content  with   a   com- 

j   promise    which    changes    gradually    during   the   progress 

i   from  infancy  to  maturity. 

Though,  as  we  have  seen,  the  child  has  a  rightful  claim 

to  food,  clothing,  shelter,  and  other  aids  to  development, 

i   yet  it  has  not  a  right  to  that  self-direction  which  is  the 

normal  accompaniment  of  self-sustentation.     There  are  two 


170  JUSTICE. 

reasons  for  not  admitting  tliis  right — tlie  one  that  exercise 
of  it  would  be  mischievous  to  itself,  and  the  other  that  it 
would  imply  an  ignoring  of  the  claim  of  parent  on  child 
which  is  the  reciprocal  of  the  claim  of  child  on  parent. 
The  first  is  self-evident,  and  the  second  scarcely  needs 
exposition.  Though  here  there  can  be  made  no  such 
measurement  of  relative  claims  as  that  which  the  law  of 
equal  freedom  enables  us  to  make  between  adults ;  yet,  if 
we  guide  ourselves  by  that  law  as  well  as  may  be,  it  results 
that  for  sustentation  and  other  aids  received  there  should 
be  given  whatever  equivalent  is  possible  in  the  form  of 
obedience  and  the  rendering  of  small  services. 

Meanwhile,  in  view  of  the  ultimate  end — the  welfare  of 
the  species — this  reciprocal  relation  between  mature  and 
immature  should  be  approximated  to  the  relation  between 
adults  as  fast  as  there  are  acquired  the  powers  of  self- 
sustentation  and  self-direction.  To  be  fitted  for  independent 
or  self-directed  activities  there  must  be  practice  in  such 
activities ;  and  to  this  end  a  gradually  increased  freedom. 
As  a  matter  of  equity,  too,  the  same  thing  is  implied. 
Where  a  child  becomes  in  a  considerable  degree  self- 
sustaining  before  the  adult  age  is  reached^  there  arises  a 
just  claim  to  a  proportionate  amount  of  freedom. 

Of  course,  essentially  at  variance  as  are  the  ethics  of  the 
family  and  the  ethics  of  the  State,  the  transition  from 
guidance  by  the  one  to  guidance  by  the  other,  must  ever 
continue  to  be  full  of  perplexities.  We  can  expect  only 
that  the  compromise  to  be  made  in  every  case,  while  not 
forgetting  the  welfare  of  the  race,  shall  balance  fairly 
between  the  claims  of  the  two  who  are  immediately 
concerned :  not  sacrificing  unduly  either  the  one  or 
the  other. 

§  95.  Still  more  in  the  case  of  children  than  in  the  case 
of  women,  do  we  see  that  progress  from  the  lower  to 
the  higher  types  of  society  is  accompanied  by  increasing 


THE    EIGHTS    OP   CHILDEEN.  171 

recognition  of  riglitful  claims.     Alike  in  respect  of  life, 
liberty,  and  property,  the  change  is  traceable. 

In  every  qnarter  of  the  globe  and  among  all  varieties  of 
men,  infanticide  exists,  or  has  existed,  as  a  customary  or 
legalized  usage — carried  sometimes  to  the  extent  of  one- 
half  of  those  born  Especially  -where,  the  means  of  sub- 
sistence being  small,  much  increase  of  the  tribe  is 
disastrous,  the  sacrifices  of  the  newly-born  are  frequent: 
the  females  being  those  oftenest  killed  because  they  do 
not  promise  to  be  of  value  in  war.  The  practices  of  the 
Greeks,  as  well  as  those  of  the  early  Eomans,  among 
whom  a  father  might  kill  his  child  at  will,  show  that 
regard  for  the  rights  of  the  immature  was  no  greater  in 
law,  though  it  may  have  been  greater  in  usage.  Of  the 
early  Teutons  and  Celts  the  like  may  be  said :  their  habit 
of  exposing  infants,  and  in  that  way  indirectly  killing  them, 
continued  long  after  denunciation  of  it  by  the  Christian 
church.  Of  course  with  disregard  for  the  lives  of  the 
young  has  everywhere  gone  disregard  for  their  liberties. 
The  practice  of  selling  them,  either  for  adoiDtion  or  as 
slaves,  has  prevailed  widely.  Not  only  among  the 
Fuegians,  the  people  of  New  Guinea,  the  New  Zea- 
landers,  the  Dyaks,  the  Malagasy,  and  many  other  un- 
civilized peoples,  is  there  barter  of  children,  but  children 
were  similarly  dealt  with  by  the  forefathers  of  the  civilized. 
Hebrew  custom  allowed  sale  of  them,  and  seizure  for  debt. 
The  Eomans  continued  to  sell  them  down  to  the  time  of 
the  emperors,  and  after  the  establishment  of  Christianity. 
By  the  Celts  of  Gaul  the  like  traffic  was  carried  on  until 
edicts  of  the  Eoman  emperors  suppressed  it ;  and  the 
Germans  persisted  in  it  till  the  reign  of  Charlemagne. 
Of  course,  if  the  liberties  of  the  young  were  disregarded  in 
this  extreme  way,  they  were  disregarded  in  minor  ways. 
No  matter  what  age  a  Eoman  had  attained,  he  could  not 
marry  without  his  father's  consent.  Of  course,  too,  along 
with  non-recognition  of  the  rights  of  life  and  liberty  went 


172  JUSTICE. 

non-recognition  of  tlie  riglit  of  property.  If  a  cliild  could 
not  possess  himself,  lie  clearly  could  not  possess  anything 
else.  Hence  the  fact  that  by  legal  devices  only  did  the 
son  among  the  Romans  acquire  independent  ownership  of 
certain  kinds  of  property,  such  as  spoil  taken  in  war  and 
certain  salaries  for  civil  services. 

Through  what  stages  there  has  been  eventually  reached 
that  large  admission  of  children's  rightful  claims  now  seen 
in  civilized  societies,  cannot  here  be  described.  Successive 
changes  have  gradually  established  for  the  young  large 
liberties — liberties  which  are,  indeed,  in  some  cases,  as  in 
the  United  States,  greater  than  is  either  just  or  politic. 
That  which  it  concerns  us  here  chiefly  to  note  is  that 
recognition  of  the  rights  of  children  has  progressed  fastest 
and  farthest  where  the  industrial  type  has  most  outgrown 
the  militant  type.  In  France,  down  to  the  time  of  the 
revolution,  children  continued  to  be  treated  as  slaves. 
Sons  who,  even  when  adults,  offended  their  fathers,  could 
be,  and  sometimes  were,  put  in  prison  by  them ;  and  girls 
were  thrust  into  convents  against  their  wills.  Only  after 
the  revolution  were  the  rights  of  sons  "at  last  proclaimed,'' 
and  '*  individual  liberty  was  no  longer  at  the  mercy  of 
lettres  de  cachet  obtained  by  unjust  or  cruel  fathers.''  But 
though  among  ourselves  in  past  centuries  the  treatment 
of  children  was  harsh,  a  father  had  not  the  power  of 
imprisoning  his  son  simply  on  his  own  motion.  Though, 
up  to  recent  generations,  parental  interdicts  on  the  mar- 
riages of  children,  even  when  of  age,  were  to  a  large  extent 
voluntarily  recognized,  they  were  not  legally  enforced. 
And  while  at  the  present  time,  on  the  continent,  parental 
restraints  on  marriage  to  a  great  extent  prevail,  in  England 
marriage  contrary  to  parental  wishes,  quite  practicable, 
does  not  even  excite  much  reprobation :  oftentimes,  indeed, 
no  reprobation. 

Thus  an  extreme  contrast  exists  between  those  early 
states  in  which  a  child,  like  a  brute,  could  be  killed  with 


THE    EIGHTS    OF    CHILDREN.  173 

impunity,  and  modern  states  in  -wliicli  infanticide  is  classed 
as  murder  and  artificial  abortion  as  a  crime,  in  which  harsh 
treatment  or  inadequate  sustentation  by  a  parent  is  punish- 
able, and  in  which,  under  trust,  a  child  is  capable  of 
valid  ownership. 

§  96.  Yet  once  more,  then,  -we  meet  with  congruity 
between  theory  and  practice — between  ethical  injunctions 
and  political  ameliorations  —  between  deductions  from 
fundamental  principles  and  inductions  from  experience. 

When  we  keep  simultaneously  in  view  the  ethics  of  tho 
family  and  the  ethics  of  the  State,  and  the  necessity  for  a 
changing  compromise  between  the  two  during  the  progress 
of  children  from  infancy  to  maturity — when  we  pay  regard 
at  the  same  time  to  the  welfare  of  the  individual  and  the 
preservation  of  the  race,  we  are  led  to  approximately 
definite  conclusions  respecting  the  rightful  claims  of 
children.  These  conclusions,  reached  a  priori,  we  find 
verified  a  posteriori  by  the  facts  of  history;  which  show 
us  that  along  with  progress  from  lower  to  higher  types  of 
society  there  has  gone  increasing  conformity  of  laws  and 
usages  to  moral  requirements. 


CHAPTER  XXII. 

POLITICAL  RIGHTS-SO-CALLED. 

§  97.  Eveiy  day  yields  illustrations  of  tlie  way  in 
wliicli  men  think  only  of  the  proximate  and  ignore  the 
remote.  The  power  of  a  locomotive  is  currently  ascribed 
to  steam.  There  is  no  adequate  consciousness  of  the  fact 
that  the  steam  is  simply  an  intermediator  and  not  an 
initiator — that  the  initiator  is  the  heat  of  the  fire.  It 
is  not  perceived  that  the  steam-engine  is  in  truth  a  heat- 
engine,  diflfering  from  other  heat-engines  (such  as  those 
in  which  gas  is  employed)  only  in  the  instrumentality 
employed  to  transform  molecular  motion  into  molar  motion. 
This  limitation  of  consciousness  to  direct  relations  and 
ignoring  of  indirect  relations,  habitually  vitiates  thinking 
about  social  affairs.  The  primary  effect  produced  by  one 
who  builds  a  house,  or  makes  a  road,  or  drains  a  field, 
is  that  he  sets  men  to  work;  and  the  work,  more  pro- 
minent in  thought  than  the  sustenance  obtained  by  it, 
comes  to  be  regarded  as  itself  a  benefit.  The  imagined 
good  is  not  increase  in  the  stock  of  commodities  cr 
appliances  which  subserve  human  wants,  but  the  expendi- 
ture of  the  labour  which  produces  them.  Hence  various 
fallacies — hence  the  comment  on  destruction  by  fire  that 
it  is  good  for  trade ;  hence  the  delusion  that  machinery 
is  injurious  to  the  people.  If  instead  of  the  proximate 
thing,  laboui*,  there  were  contemplated  the  ultimate  thing, 
produce,  such  errors  would  be  avoided.  Similarly  is  it 
with  currency  fallacies.      Coins,  which  may  be  exchanged 


^  POLITICAX    EIGHTS — SO-CALLED.  175 

for  all  kinds  of  desired  things,  come  themselves  to  be 
connected  in  men's  minds  with  the  idea  of  value,  rather 
than  the  things  they  will  purchase;  which,  as  satisfying 
desires,  are  the  truly  valuable  things.  And  then  promises- 
to-pay,  serving  in  place  of  coins,  intrinsically  valueless 
though  they  are,  are,  by  daily  experience  of  tbeir  purchasing 
power,  so  associated  with  the  idea  of  value  that  abundance 
of  them  becomes  identified  in  thought  with  wealth;  and 
there  results  the  belief  that  it  only  needs  a  profusion 
of  bank-notes  to  insure  national  prosperity :  errors  which 
would  be  avoided,  were  the  reasoning  carried  on  in  terms  of 
commodities,  instead  of  being  carried  on  in  terms  of  these 
symbols.  This  usurpation  of  consciousness  by  the  proxi- 
mate and  expulsion  from  it  of  the  remote — this  forgetting 
of  the  ends  and  erecting  the  means  into  ends,  is  again 
shown  us  in  education.  The  time  was  when  know- 
ledge anciently  acquired  having  ceased  to  be  current,  the 
learning  of  Latin  and  Greek,  in  which  that  knowledge  was 
recorded,  became  indispensable  as  a  means  to  acquirement 
of  it ;  and  it  was  then  regarded  as  a  means.  But  now,  long 
after  this  ancient  knowledge  has  been  rendered  accessible 
in  our  language,  and  now,  when  a  vastly  larger  mass  of 
knowledge  has  been  accumulated,  this  learning  of  Latin 
and  Greek  is  persisted  in;  and,  moreover,  has  come  to  be 
practically  regarded  as  the  end,  to  the  exclusion  of  the  end 
as  originally  conceived.  Young  men  who  are  tolerably 
familiar  with  these  ancient  languages,  are  supposed  to  be 
educated;  though  they  may  have  acquired  but  little  of 
what  knowledge  there  is  embodied  in  them  and  next 
to  nothing  of  the  immensely  greater  amount  of  know- 
ledge and  immensely  more  valuable  knowledge  which  cen- 
turies of  research  have  established. 

§  98.  With  what  view  is  here  made  this  general 
remark,  thus  variously  illustrated  ?  With  the  view  of  pre- 
paring   the    way   for    a    further    illustration    which    now 


Y 


176  JUSTICE. 

concerns  ns.  Curreafc  political  tliouglit  is  profoundly 
vitiated  by  this  mistaking  of  means  for  ends^  and  by  this 
pursuit  of  tlie  means  to  the  neglect  of  the  ends.  Hence, 
among  others,  the  illusions  which  prevail  concerning 
''political  rights." 

There  are  no  further  rights,  truly  so  called,  than  such  us 
have  been  set  forth.  If,  as  we  have  seen,  rights  are  but  so 
many  separate  parts  of  a  man's  general  freedom  to  pursue  the 
objects  of  life,  with  such  limitations  only  as  result  from  the 
presence  of  other  men  who  have  similarly  to  pursue  such 
objects,  then,  if  a  man's  freedom  is  not  in  any  way  farther 
restricted,  he  possesses  all  his  rights.  If  the  integrity  of 
his  body  is  in  no  way  or  degree  interfered  with ;  if  there  is 
no  impediment  to  his  motion  and  locomotion ;  if  his  owner- 
ship of  all  that  he  has  earned  or  otherwise  acquired  is 
fully  respected  ;  if  he  may  give  or  bequeath  as  he  pleases, 
occupy  himself  in  what  way  he  likes,  make  a  contract 
or  exchange  with  whomsoever  he  wills,  hold  any  opinions 
and  express  them  in  speech  or  print,  &c.,  &c.,  nothing 
remains  for  him  to  demand  under  the  name  of  rights, 
as  properly  understood.  Any  other  claims  he  may  have 
must  be  of  a  different  kind — cannot  be  classed  as  rights. 
Many  times  and  in  various  ways  we  have  seen  that  rights, 
truly  so  called,  originate  from  the  laws  of  life  as  carried  on 
in  the  associated  state.  The  social  arrangements  may  ba 
such  as  fully  recognize  them,  or  such  as  ignore  them  in 
greater  or  smaller  degrees.  The  social  arrangements 
cannot  create  them,  but  can  simply  conform  to  them  or 
not  conform  to  them.  Such  parts  of  the  social  arrange- 
ments as  make  up  what  we  call  government,  are  instru- 
mental to  the  maintenance  of  rights,  here  in  great  measure 
and  there  in  small  measure  ;  but  in  whatever  measure,  they 
are  simply  instrumental,  and  whatever  they  have  in  them 
which  may  be  called  right,  must  be  so  called  only  in  virtue 
of  their  efficiency  in  maintaining  rights. 

But  because  of  this  tendency  to  occupation  of  the  mind 


POLITICAL    RIGHTS — SO-CALLED.  177 

by  the  means  and  proportionate  exclusion  of  the  ends,  it 
results  that  those  governmental  arrangements  which  con- 
duce to  maintenance  of  rights  come  to  be  regarded  as  them- 
selves rights — nay,  come  to  be  thought  of  as  occupying  a 
foremost  place  in  this  category.  Those  shares  of  political 
power  which  in  the  more  advanced  nations  citizens  havo 
come  to  possess,  and  which  experience  has  shown  to  be 
good  guarantees  for  the  maintenance  of  life,  liberty,  and 
property,  are  spoken  of  as  though  the  claims  to  them 
were  of  the  same  nature  as  the  claims  to  life,  liberty, 
and  property  themselves.  Yet  there  is  no  kinship  between 
the  two.  The  giving  of  a  vote,  considered  in  itself,  in  no 
way  furthers  the  voter's  life,  as  does  the  exercise  of  those 
various  liberties  we  properly  call  rights.  All  we  can  say  is 
that  the  possession  of  the  franchise  by  each  citizen  gives 
the  citizens  in  general  powers  of  checking  trespasses  upon 
their  rights  :  powers  which  they  may  or  may  not  use  to 
good  purpose. 

-^  The  confusion  between  means  and  ends  has  in  this  case 
been  almost  inevitable.  Contrasts  between  the  states  of 
different  nations,  and  between  the  states  of  the  same  nation 
at  diiferent  periods,  have  strongly  impressed  men  with  the 
general  truth  that  if  governmental  power  is  in  the  hands  of 
'  one,  or  in  the  hands  of  a  few,  it  will  be  used  to  advantage 
the  one  or  the  few  ;  and  that  the  many  will  be  correspond- 
ingly disadvantaged.  That  is  to  say,  those  who  have  not 
the  power  will  be  subject  to  greater  restraints  and  burdens 
than  those  who  have  the  power — will  be  defrauded  of  that 
liberty  of  each,  limited  only  by  the  like  liberties  of  all, 
which  equity  demands — will  have  their  rights  more  or  less 
seriously  infringed.  And  as  experience  has  shown  that  a 
wider  distribution  of  political  power  is  followed  by  decrease 
of  these  trespasses,  maintenance  of  a  popular  form  of 
government  has  come  to  be  identified  with  the  maintenance  . 
of  rights,  and  the  power  of  giving  a  vote,  being  instrumental  \ 
ito  maintenance  of  rights,  has  come  to  be  regarded  as  itself    . 


178  JUSTICE. 

a  right — nay,    often  usurps  in   the    general    apprehension 
the  place  of  the  rights  properly  so  called. 

How  true  this  is  we  shall  learn  on  observing  that  where 
so-called  political  rights  are  possessed  by  all,  rights  properly 
so  called  are  often  unscrupulously  trampled  upon.  In 
France  bureaucratic  despotism  under  the  Republic,  is  as 
great  as  it  was  under  the  Empire.  Exactions  and  com- 
pulsions are  no  less  numerous  and  peremptory;  and,  as  was 
declared  by  English  trade-union  delegates  to  a  congress  in 
Paris,  the  invasion  of  citizens'  liberties  in  France  goes  to 
an  extent  which  "  is  a  disgrace  to,  and  an  anomaly  in,  a 
Republican  nation."  Similarly  in  the  United  States.  Uni- 
versal suffi-age  does  not  prevent  the  corruptions  of  municipal 
governments,  which  impose  heavy  local  taxes  and  do  very, 
inefficient  work ;  does  not  prevent  the  growth  of  general 
and  local  organizations  by  which  each  individual  is  com- 
pelled to  surrender  his  powei^s  to  wirepullers  and  bosses ; 
does  not  prevent  citizens  from  being  coerced  in  their  private 
lives  by  dictating  what  they  shall  not  drink  ;  does  not 
prevent  an  enormous  majority  of  consumers  from  being 
heavily  taxed  by  a  protective  taiaff  for  the  benefit  of  a  small 
minority  of  manufacturers  and  artizans  ;  nay,  does  not  even 
effectually  preserve  men  from  violent  deaths,  but,  in  sundr}! 
States,  allows  of  frequent  murders,  checked  only  by  law- 
officers  who  are  themselves  liable  to  be  shot  in  the  per- 
formance of  their  duties.  Nor  indeed  are  the  result.' 
altogether  diffei-ent  here.  Far  from  having  effected  bettei 
maintenance  of  men's  rights  properly  so-called,  the  recen 
extensions  of  the  franchise  have  been  followed  by  increase! 
trespasses  on  ihem — more  numerous  orders  to  do  this  and  no 
to  do  that,  and  greater  abstractions  from  their  purses. 

Thus  both  at  home  and  abroad  the  disproof  is  cleai 
From  the  extreme  case  in  which  men  use  their  so-callei 
political  rights  to  surrender  their  power  of  preserving  thei 
rights  properly  so  called,  as  by  the  pUhiscite  which  electc' 
Napoleon  III.,  to  the  cases  in  which  men  let  themselves  b 


POLITICAL    RIGHTS — SO-CALLED.  179 

coerced  into  sending  tlieir  children  to  receive  lessons  in 
grammar  and  gossip  about  kings,  often  at  the  cost  of  under- 
feeding and  weak  bodies,  we  find  none  of  the  supposed  iden- 
tity. Though  the  so-called  political  rights  may  be  used  for 
the  maintenance  of  liberties,  they  may  fail  to  be  so  usedj  and 
may  even  be  used  for  the  establishment  of  tyrannies. 

§  99.  Beyond  that  confusion  of  means  with  ends,  which 
as  we  here  see  is  a  cause  of  this  current  misapprehension, 
there  is  a  further  cause.  The  conception  of  a  right  is  com- 
posite, and  there  is  a  liability  to  mistake  the  presence  of 
one  of  its  factors  for  the  presence  of  both. 

As  repeatedly  shown,  the  positive  element  in  the  concep- 
tion is  liberty ;  while  the  negative  element  is  the  limitation 
implied  by  other's  equal  liberties.  But  the  two  rarely  co- 
exist in  due  proportion,  and  in  some  cases  do  not  co-exist 
at  all.  There  may  be  liberty  exercised  without  any  re- 
straint ;  resulting  in  perpetual  aggressions  and  universal 
warfare.  Conversely,  there  may  be  an  equality  in  restraints 
which  are  carried  so  far  as  practically  to  destroy  liberty. 
Citizens  may  be  all  equally  coerced  to  the  extent  of 
enslaving  them,  by  some  power  which  they  have  set  up — 
may,  in  pursuance  of  philanthropic  or  other  ends,  be 
severally  deprived  by  it  of  large  parts  of  that  freedom 
which  remains  to  each  after  duly  regarding  the  liberties  of 
others.  Now  the  confusion  of  thought  above  pointed  out, 
which  leads  to  this  classing  of  so-called  political  rights  with 
rights  properly  so  called,  arises  in  part  from  thinking  of  the 
secondary  trait,  equality,  while  not  thinking  of  the  primary 
trait,  liberty.  The  growth  of  the  one  has  so  generally  been 
associated  with  the  growth  of  the  other,  that  the  two 
have  come  to  be  thought  of  as  necessary  concomitants,  and 
it  is  assumed  that  if  the  equality  is  obtained  the  liberty 
is  ensured. 

But,  as  above  shown,  this  is  by  no  means  the  case.  Men 
may  use  their  equal  freedom  to  put  themselves  in  bondage ; 


180  JUSTICE. 

failing  as  they  do  to  understand  that  the  demand  for 
equality  taken  by  itself  is  fulfilled  if  the  equality  is  in 
degrees  of  oppression  borne  and  amounts  of  pain  suffered. 
They  overlook  the  truth  that  the  acquirement  of  so-called 
political  rights  is  by  no  means  equivalent  to  the  acquirement 
of  rights  properly  so  called.  The  one  is  but  an  instrumen- 
tality for  the  obtainment  and  maintenance  of  the  other;  and 
it  may  or  may  not  be  used  to  achieve  those  ends. '^"  The 
essential  question  is — How  are  rights,  properly  so  called,  to 
be  preserved — defended  against  aggressors,  foreign  and 
domestic  ?  This  or  that  system  of  government  is  but  a 
system  of  appliances.  Government  by  representation  is 
one  of  these  systems  of  appliances ;  and  the  choosing  of 
representatives  by  the  votes  of  all  citizens  is  one  of  various 
ways  in  which  a  representative  government  may  be  formed. 
Hence  voting  being  simply  a  method  of  creating  an 
appliance  for  the  preservation  of  rights,  the  question  is 
whether  universal  possession  of  votes  conduces  to  creation 
of  the  best  appliance  for  preservation  of  rights.  We  have 
seen  above  that  it  does  not  effectually  secure  this  end ;  and 
we  shall  hereafter  see  that  under  existing  conditions  it  is 
not  likely  to  secure  it. 

But  further  discussion  of  this  matter  must  be  postponed. 
We  must  first  deal  with  a  more  general  topic — "  The  nature 
of  the  State.^' 


CHAPTER  XXIII. 

THE  NATURE  OF  THE  STATE. 

§  100.  The  study  of  evolution  at  large  makes  familiar 
the  truth  that  the  nature  of  a  thing  is  far  from  being  fixed. 
Without  change  of  identity^  it  may  at  one  time  have  one 
nature  and  at  a  subsequent  time  quite  a  different  nature. 
The  contrast  between  a  nebulous  spheroid  and  the  solid 
planet  into  which  it  eventually  concentrates,  is  scarcely 
greater  than  the  contrasts  which  everywhere  present  them- 
selves. 

Throughout  the  organic  world  this  change  of  nature  is 
practically  universal.  Here  is  a  Polype  which_,  after  a  period 
of  sedentary  life,  splits  up  into  segments  which  severally 
detach  themselves  as  free-swimming  Medusas.  There  is  a 
small  larva  of  Annulose  type  which,  moving  about  actively 
in  the  water  for  a  time,  fixes  itself  on  a  fish,  loses  its  motor 
organs,  and,  feeding  parasitically,  grows  into  little  more 
than  stomach  and  egg-bags ;  and  there  is  another  which 
ends  the  wanderings  of  its  early  life  by  settling  down  on  a 
rock  and,  developing  into  what  is  popularly  known  as  an 
acorn-shell,  gets  its  livelihood  by  sweeping  into  its  gullet 
minute  creatures  from  the  surrounding  water.  Now  the 
case  is  that  of  a  worm-like  form  which,  living  and  feeding 
for  a  long  time  in  the  water,  finally,  after  a  period  of  rest, 
bursts  its  pupa-shell  and  flies  away  as  a  gnat;  and  again  it 
is  that  of  the  maggot  and  flesh-fly,  or  grub  and  moth,  which 
everyday   experience   makes    so   familiar.      Strangest   and 


182  JUSTICE. 

most  extreme  of  all,  liowever,  are  those  metamorplioses 
presented  by  some  of  the  low  aquatic  AJgce  which,  moving 
about  actively  for  a  brief  period  and  displaying  the 
characters  of  animals,  presently  fix  themselves,  sprout  out, 
and  become  plants. 

Contemplation  of  such  facts,  abundant  beyond  enumera- 
tion and  wonderfully  various,  warns  us  against  the  error 
likely  to  arise  everywhere  from  the  tacit  assumption  that 
the  nature  of  a  thing  has  been,  is,  and  always  will  be,  the 
same.  We  shall  be  led  by  it,  contrariwise,  to  expect  change 
of  nature — very  possibly  fundamental  change. 

§  101.  It  is  tacitly  assumed  by  nearly  all  that  there  is 
but  one  right  conception  of  the  State  ;  whereas  if,  recog- 
nizing the  truth  that  societies  evolve,  we  learn  the  lessons 
which  evolution  at  large  teaches,  we  shall  infer  that 
probably  the  State  has,  in  different  places  and  times, 
essentially  different  natures.  The  agreement  between 
inference  and  fact  will  soon  become  manifest. 

Not  to  dwell  on  the  earliest  types,  mostly  characterized 
by  descent  in  the  female  line,  we  may  consider  first  the 
kind  of  group  intermediate  in  character  between  the  family 
and  the  society — the  patriarchal  group.  This,  as  illustrated 
in  the  nomadic  horde,  forms  a  society  in  which  the 
relationships  of  the  individuals  to  one  another  and  to  their 
common  head,  as  well  as  to  the  common  property,  give  to 
the  structure  and  functions  of  the  incorporated  whole  a 
nature  quite  unlike  the  natures  of  bodies  politic  such  as  we 
DOW  know.  Even  when  such  a  group  develops  into  a 
village-community,  which,  as  shown  in  India,  may  have 
"  a  complete  staff  of  functionaries,  for  internal  govern-i 
ment,"  the  generality  (though  not  universality)  of  relation-i 
ships  among  the  associated  persons  gives  to  it  a  corporat® 
nature  markedly  different  from  that  of  a  society  in  which 
ties  of  blood  have  ceased  to  be  dominant  factors. 

When,  ascending  to  a  higher  stage  of  composition,  we 


THE  NATURE  OF  THE  STATE.  183 

look  at  communities  like  those  of  Greece,  in  whicli  many 
clusters  of  relations  are  Tiuited,  so  that  members  of  various 
families,  gentes  and  ]jliratries,  are  interfused  without  losinor 
their  identities,  and  in  which  the  respective  clusters  have 
corporate  interests  independent  of,  and  often  antagonistic 
to,  one  another;  it  is  undeniable  that  the  nature  of  the 
community  as  a  whole  differs  greatly  from  that  of  a  modern 
community,  in  which  complete  amalgamation  of  component 
clusters  has  destroyed  the  primitive  lines  of  division  ;  and 
in  which,  at  the  same  time,  individuals,  and  not  family- 
clusters,  have  become  the  political  units. 

Once  more,  on  remembering  the  contrast  between  the 
system  of  status  and  the  system  of  contract,  we  cannot  fail 
to  see  an  essential  unlikeness  of  nature  between  the  two 
kinds  of  body-politic  formed.  In  sundry  ancient  societies 
*'  the  religious  and  political  sanction,  sometimes  combined 
and  sometimes  separate,  determined  for  every  one  his  mode 
of  life,  his  creed,  his  duties,  and  his  place  in  society, 
without  leaving  any  scope  for  the  will  or  reason  of  the 
individual  himself.'^  But  among  ourselves  neither  religious 
nor  political  sanction  has  any  such  power ;  nor  has  any 
individual  his  position  or  his  career  in  life  prescribed 
•for  him. 

In  presence  of  these  facts  we  cannot  rationally  assume 
unity  of  nature  in  all  bodies  politic.  So  far  from  supposing 
that  the  general  conception  of  the  State  framed  by  Aris- 
itotle,  and  deiived  from  societies  known  to  him,  holds  now 
and  serves  for  present  guidance,  we  may  conclude  that,  in 
all  likelihood,  it  is  inapplicable  now  and  would  misguide 
us  if  accepted. 

§  102.  Still  more  shall  we  be  impressed  with  this  truth 
if,  instead  of  contrasting  societies  in  their  natures,  we  con- 
trast them  in  their  actions.  Let  us  observe  the  several 
kinds  of  life  they  carry  on. 

As  evolution  implies  gradual  transitiou^  it_^fqllow3  that 


fs^. 


OF  TflTB         >P^ 


184  JUSTICE. 

extremely  unlike  as  incorporated  bodies  of  men  may 
become,  sliarp  divisions  are  impracticable.  But  bearing  in 
mind  this  qualification,  we  may  say  that  there  are  three 
distinct  purposes  for  which  men,  originally  dispersed  as 
wandering  families,  may  associate  themselves  more  closely. 
The  desire  for  companionship  is  one  prompter :  though  not 
universal,  sociality  is  a  general  trait  of  liuman  beings  which 
leads  to  aggregation.  A  second  prompter  is  the  need  for 
combined  action  against  enemies,  animal  or  human,  or  both — 
co-operation,  now  to  resist  external  aggression  and  now  to 
carry  on  external  aggression.  The  third  end  to  be  achieved 
is  that  of  facilitating  sustentation  b}'-  mutual  aid — co-opera- 
tion for  the  better  satisfying  of  bodily  wants  and  eventually 
of  mental  wants.  In  most  cases  all  three  ends  are 
subserved.  Not  only,  however,  are  they  theoretically  dis-; 
tinguishable,  but  each  one  of  them  is  sepai-ately  exemplified.' 

Of  social  groups  which  satisfy  the  desire  for  companion- 
Bhip  only,  those  formed  by  the  Esquimaux  may  be  named. 
The  men  composing  one  of  them  are  severally  independent. 
Having  no  need  to  combine  for  external  offence  or  defence, 
they  need  no  leaders  in  war  and  have  no  political  rule :  the 
only  control  exercised  over  each  being  the  display  oj 
opinion  by  his  fellows.  Nor  is  there  any  division  of  labour 
Industrial  co-operation  is  limited  to  that  between  man  anc 
wife  in  each  family.  The  society  has  no  further  incorpo 
ration  than  that  which  results  from  the  juxta-position  of  it; 
parts  :  there  is  no  mutual  dependence. 

The  second  class  is  multitudinous.  Instances  of  its  pun 
form  are  furnished  by  hunting-tribes  at  large,  the  activitie 
of  which  alternate  between  chasing  animals  and  going  t( 
war  with  one  another;  and  instances  are  furuished  b; 
piratical  tribes  and  tribes  which  subsist  by  raids  on  thei  i 
neighbours,  like  the  Masai.  In  such  communities  divisioijj 
of  labour,  if  present  at  all,  is  but  rudimentary.  Co-operatioi 
is  for  carrying  on  external  defence  and  offence,  and  is 
scarcely  any  extent  for  carrying  on  internal  sustentatioi 


THE    NATURE    OP   THE    STATE.  185 

Thougli  when^  by  conquest^  there  are  formed  larger 
societies,  some  industrial  co-operation  begins,  and  increases 
as  the  societies  increase,  yet  this,  carried  on  by  slaves 
and  serfs,  superintended  by  tlieir  owners,  suffices  in  but 
small  measure  to  qualify  the  essential  character.  This 
character  is  that  of  a  body  adapted  for  carrying  on  joint 
action  against  other  such  bodies.  The  lives  of  the  units 
are  subordinated  to  the  extent  needful  for  preserving 
(and  in  some  cases  extending)  the  life  of  the  whole. 
Tribes  and  nations  in  which  such  subordination  is  not 
maintained  must,  other  things  equal,  disappear  before 
tribes  and  nations  in  which  it  is  maintained ;  and  hence 
;  such  subordination  must,  by  survival  of  the  fittest,  become 
'an  established  trait.  Along  with  the  unquestioned  assump- 
ition  appropriate  to  this  type,  that  war  is  the  business  of 
'life,  there  goes  the  belief  that  each  individual  is  a  vassal 
iof  the  community — that,  as  the  Greeks  held,  the  citizen 
does  not  belong  to  himself,  or  to  his  family,  but  to  his  city. 
And  naturally,  along  with  this  merging  of  the  individual's 
claims  in  the  claims  of  the  aggregate,  there  goes  such 
coercion  of  him  by  the  aggregate  as  makes  him  fit  for  its 
purposes.  He  is  subject  to  such  teaching  and  discipline 
and  control  as  are  deemed  requisite  for  making  him  a  good 
'warrior  or  good  servant  of  the  State. 

;  To  exemplify  societies  of  the  third  class  in  a  satisfactory 
iway,  is  impracticable;  because  fully  developed  forms  of 
them  do  not  yet  exist.  Such  few  perfectly  peaceful  tribes 
as  are  found  in  some  Papuan  islands,  or  occupying  parts  of 
'India  so  malarious  that  the  warlike  races  around  cannot 
'live  in  them,  are  prevented  by  their  unfit  environments 
from  developing  into  large  industrial  societies.  The  Bodo, 
the  Dhimal,  the  Kocch  and  other  aboriginal  peoples  who, 
:living  by  agriculture,  cluster  in  villages  of  from  ten  to  forty 
jhouses,  and  shift  to  new  tracts  when  they  exhaust  the  old, 
(show  us,  beyond  the  division  of  labour  between  the  sexes, 
'no  further  co-operation  than  rendering  mutual  assistance 
9 


186  JUSTICE. 

in  building  tlieir  houses  and  clearing  their  plots.  Speaking 
generally,  it  is  only  after  conquest  has  consolidated  small 
communities  into  larger  ones,  that  there  arise  opportunities 
for  the  growth  of  mutual  dependence  among  men  -who 
have  devoted  themselves  to  different  industries.  Hence 
throughout  long  periods  the  industrial  organization,  merely 
subservient  to  the  militant  organization,  has  had  its 
essential  nature  disguised.  Now,  however,  it  has  become  i 
manifest  that  the  most  developed  modern  nations  are 
organized  on  a  principle  fundamentally  unlike  that  on 
which  the  great  mass  of  past  nations  have  been  organized.  ■ 
If,  ignoring  recent  retrograde  changes  throughout  Europe, 
we  compare  societies  of  ancient  times  and  of  the  middle 
ages,  with  societies  of  our  own  times,  and  especially  with 
those  of  England  and  America,  we  see  fundamental 
differences.  In  the  one  case,  speaking  broadly,  all  free 
men  are  warriors  and  industry  is  left  to  slaves  and  serfs ;  in 
the  other  case  but  few  free  men  are  warriors,  while  the  vast 
mass  of  them  are  occupied  in  production  and  distribution, 
In  the  one  case  the  numerous  warriors  become  such  undei 
compulsion;  while  in  the  other  case  the  relatively  fewj^ 
warriors  become  such  under  agreement.  Evidently,  then'^ 
the  essential  contrast  is  that  in  the  one  case  the  agg-regatt 
exercises  great  coercion  over  its  units ;  while  in  the  othe: 
case  it  exercises  coercion  which  is  small  and  tends  to  becom- 
less  as  militancy  declines. 

What  is  the  meaning  of  this  contrast  reduced  to  its  lowes 
terms  ?     In   either  case  the  end   to   be  achieved    by  th     i 
society   in  its    corporate  capacity,  that   is,  by  the   State    i 
is  the  welfare  of  its  units;    for  the  society  having  as  a 
aggregate  no  sentiency,  its  preservation  is  a  desideratuE 
only  as   subserving  individual    scntiencies.     How   does   i 
subserve  individual  sentiencies  ?     Primarily  by  preventin,     ' 
interferences   with   the   carrying    on   of    individual   live.' 
In  the  first  stage,    death    and   injury    of  its  members  b 
external  foes  is  that  which  the  incorporated    society  ha 


THE  NATURE   OF  THE   STATE.  187 

cliieflj,  tliougli  not  wholly,  to  prevent;  and  It  is  ctlilc- 
ally  warranted  in  coercing  its  members  to  tlie  extent 
required  for  tliis.  In  tlie  last  stage,  death  and  injury  of  its 
members  by  internal  trespasses  is  that  which  it  has  chiefly 
if  not  wholly  to  prevent ;  and  the  ethical  warrant  for 
coercion  does  not  manifestly  go  beyond  what  is  needful  for 
^preventing  them. 

!  §  103.  This  is  not  the  place  to  consider  whether  with 
jthis  last  function  any  further  function  may  be  joined. 
Limited  as  our  subject  matter  is  to  the  nature  of  the  State, 
it  concerns  us  only  to  observe  the  radical  difference  between 
ithese  two  social  types.  The  truth  to  be  em^Dhasized  is  that 
a  body  politic  which  has  to  operate  on  other  such  bodies,  and 
to  that  end  must  wield  the  combined  forces  of  its  component 
units,  is  fundamentally  unlike  a  body  politic  which  has  to 
operate  only  on  its  component  units.  Whence  it  follows  tha,t 
political  speculation  which  sets  out  with  the  assumption 
that  the  State  has  in  all  cases  the  same  nature,  must  end  in 
profoundly  erroneous  conclusions. 

■  A  further  implication  must  be  pointed  out.  During  long 
:past  periods,  as  well  as  in  our  own  day,  and  for  an  indefinite 
time  to  come,  there  have  been,  are,  and  will  be,  changes, 
jprogressive  and  retrograde,  approximating  societies  now  to 
one  type  and  now  to  the  other  :  these  types  must  be  both 
mixed  and  unsettled.  Indefinite  and  variable  beliefs 
respecting  the  nature  of  the  State  must  therefore  be 
expected  to  prevail. 


CHAPTER  XXIV. 

THE    CONSTITUTION  OF   THE   STATE. 

§  104.  Difference  of  ends  usually  implies  difference  o) 
means.  It  is  unlikely  tliat  a  structure  best  fitted  for  one 
purpose  will  be  best  fitted  for  another  purpose. 

If  to  preserve  tlie  lives  of  its  units^  and  to  maintain  tliai 
freedom  to  pursue  tlie  objects  of  life  which  is  ordinarilj 
possessed  by  unconquered  peoples^  a  society  has  to  use  it.' 
corporate  action  chiefly  for  dealing  with  environing-  societies 
then  its  organization  must  be  such  as  wall  bring  into  play  thd 
effectually-combined  forces  of  its  units  at  specific  times  an( 
places.  It  needs  no  proof  that  if  its  units  are  left  to  ac 
without  concert  they  will  be  forthwith  subjugated ;  and  i 
needs  no  proof  that  to  produce  concerted  action,  they  mus 
be  under  direction.  Conformity  to  such  direction  must  b 
insured  by  compulsion ;  the  agency  which  compels  mus 
issue  consistent  orders;  and  to  this  end  the  orders  mu 
emanate  from  a  single  authority.  Tracing  up  the  genesis  c 
the  militant  type  (see  Principles  of  Sociology,  §§  547-561 
leads  irresistibly  to  the  conclusion  that  for  efficient  externs! 
action  of  a  society  against  other  societies,  centralizatioi 
is  necessary ;  and  that  establishment  of  it  becomes  mor 
decided  the  more  habitual  is  such  external  action.  Nc 
only  does  the  fighting  body  itself  become  subject  t 
despotic  rule,  but  also  the  community  which  supports  i 


THE    CONSTITUTION    OF   THE    STATE.  189 

The  -will  of  the  aggregate,  acting  through  the  governing 
power  it  has  evolved,  overrides  and  almost  suppresses  the 
wills  of  its  individual  members.  Such  rights  as  they  are 
allowed  they  hold  only  on  sufferance. 

Hence  so  long  as  militancy  predominates,  the  constitution 
of  the  State  must  be  one  in  which  the  ordinary  citizen  is 
subject  either  to  an  autocrat  or  to  an  oligarchy  out  of  which 
an  autocrat  tends  continually  to  arise.  As  we  saw  at  the 
outset,  such  subjection,  with  its  concomitant  loss  of  freedom 
and  contingent  loss  of  life,  has  a  quasi-ethical  warrant 
when  necessitated  by  defensive  war.  The  partial  suspen- 
sion of  rights  is  justifiable  when  the  object  is  to  prevent 
those  complete  obliterations  and  losses  of  them  which  result 
from  death  or  subjugation.  Ordinarily,  however,  the  mili- 
tant type  of  society  is  developed  more  by  offensive  wars 
than  by  defensive  wars;  and  where  this  is  the  case,  tho 
accompanying  constitution  of  the  State  has  no  ethical 
warrant.  However  desirable  it  may  be  that  the  superior 
races  should  conquer  and  replace  the  inferior  races,  and 
that  hence  during  early  stages  aggressive  wars  subserve 
the  interests  of  humanity;  yet,  as  before  said,  the  sub- 
serving of  such  interests  after  this  manner  must  be  classed 
with  the  subserving  of  life  at  large  by  the  struggle  for 
existence  amotig  inferior  creatures — a  species  of  action  of 
which  ethics  takes  no  cognisance. 

Here,  that  which  we  have  to  note  is  that  when  the  sur- 
rounding conditions  are  such  that  a  society  is  endangered 
bodily  by  other  societies,  its  required  coercive  constitution 
is  one  which,  far  though  it  may  be  from  the  absolutely 
right,  is  yet  relatively  right — is  the  least  wrong  which 
circumstances  allow. 

§  lOo.vWhcn,  ignoring  intermediate  forms,  we  pass 
from  the  militant  type  to  the  industrial  type,  considered  as 
fully  developed,  we  see  that  the  required  constitution  of  the 
State  is  quite  different.     To  maintain  the  conditions  under 


190  JUSTICE. 

wliicli  life  and  its  activities  may  be  carried  on,  is  in  eitlier 
case  the  end;  but  to  maintain  these  conditions  against 
external  enemies,  and  to  maintain  them  against  internal 
enemies,  are  two  widely  unlike  functions  calling  for  widely 
unlike  appliances.     Observe  the  contrasts. 

In  the  one  case  the  danger  is  directly  that  of  the  com- 
munity as  a  whole  and  indirectly  that  of  individuals; 
while  in  the  other  case  it  is  directly  that  of  individuals 
and  indirectly  that  of  the  community  as  a  whole.  In  the 
one  case  the  danger  is  large,  concentrated,  and  in  its  first 
incidence  local;  while  in  the  other  case  the  dangers  are' 
multitudinous,  small,  and  diffused.  lu  the  one  case  all 
members  of  the  community  are  simultaneously  threatened 
with  injury  ;  while  in  the  other  case  the  injury  threatened 
or  experienced  is  now  of  one  person  now  of  another ;  and 
the  citizen  at  one  time  aggressed  upon  is  at  another  time 
an  aggressor.  And  while  the  vast  evil  to  be  dealt  with  in 
the  one  case  is,  when  warded  off,  no  longer  to  be  feared  for 
some  time  at  least ;  the  evils  to  be  dealt  with  in  the  other 
case,  though  small,  are  unceasing,  in  their  occurrence. 
Evidently,  then,  having  functions  so  unlike,  the  political 
appliances  employed  should  be  unlike. 

For  preventing  murders,  thefts,  and  frauds,  there  does 
not  need  an  army ;  and  an  army,  were  it  used,  could  not 
deal  with  transgressions  which  are  scattered  everywhere. 
The  required  administration  must  be  diffused  as  are  the 
wrong-doings  to  be  prevented  or  punished  ;  and  its  action 
must  be  continuous  instead  of  being  occasional.  But  in  the 
absence  of  large  combined  forces  required  for  military 
purposes,  there  does  not  need  that  coercive  rule  by  which 
alone  combined  forces  can  be  wielded.  Contrariwise,  there 
needs  a  rule  adapted  for  maintaining  the  rights  of  each 
citizen  against  others,  and  which  is  also  regardful  of  those 
rights  in  its  own  dealings  with  citizens. 

"VYhat  is  the  appropriate  constitution  of  the  State  ?     At 
first  sight  it  seems  that  since  every  citizen  (supposing  him 


THE    CONSTITUTION    OF    THE    STATE.  191 

not  to  be  Irimself  an  aggressor)  is  interested  in  tlie  preser- 
vation of  life  and  property,  tlie  fulfilment  of  conti-acts,  and 
the  enforcement  of  all  minor  rights,  the  coustitutiou  of  tho 
State  should  be  one  in  which  each  citizen  has  an  equal 
share  of  power  with  his  fellows.  It  appears  undeniable 
that  if,  in  pursuance  of  the  law  of  equal  freedom,  men  are 
to  have  equal  rights  secured  to  them,  they  ought  to 
have  equal  pov/ers  in  appointing  the  agency  which  secures 
such  rights. 

In  the  last  chapter  but  one  it  was  shown  that  this  is  not 
a  legitimate  corollary;  and  various  illustrations  made  ib 
clear  that  the  approved  means  did  not  achieve  the  desired 
end.  Here  we  have  to  observe  why  they  are  not  likely  to 
achieve  them. 

§  106.  Of  truths  concerning  human  conduct  none  is  more 
certain  than  that  men  will,  on  the  average,  be  swayed 
by  their  interests,  or  rather  by  their  apparent  interests. 
Government  is  itself  necessitated  by  the  general  tendency 
to  do  this  j  and  every  Act  of  Parliament  makes  provisions 
to  exclude  its  injurious  effects.  How  universally  operative 
and  how  universally  recognized  such  tendency  is,  every  will, 
every  lease,  every  contract  proves. 

The  working  of  this  or  that  lorm.  of  govei'nment  is  inevit- 
ably determined  by  this  tendency.  Of  those  who  form 
parts  of  the  political  agency,  and  of  those  who  directly  or 
indirectly  appoint  them,  it  must  be  true,  as  of  all  others, 
that  they  will  be  swayed  by  their  apparent  interests.  The 
laws  of  every  country  furnish  proofs  without  end.  And 
history  having  thus  conclusively  shown  that  those  who 
have  predominant  power  will  use  it  to  their  own  advantage, 
there  has  been  drawn  the  inference  that  only  by  endowing 
all  with  power  can  the  advantage  of  all  be  secured.  But 
the  fallacy  is  becoming  obvious. 

A  generation  ago,  while  agitations  for  the  wider  diffusion 
of  political  power  were  active,  orators  and  journalists  daily 


192  JUSTICE. 

denounced  the  "class-legislation"  of  tbe  aristocracy.  But 
there  was  no  recognition  of  the  truth  that  if,  instead  of  the 
class  at  that  time  paramount,  another  class  were  made 
paramount,  there  would  result  a  new  class-legislation  in 
place  of  the  old.  That  it  has  resulted  every  day  proves. 
If  it  is  true  that  a  generation  ago  landowners  and  capitalists 
so  adjusted  public  arrangements  as  to  ease  themselves  and 
to  press  unduly  upon  others,  it  is  no  less  true  that  now 
artizans  and  labourers,  through  representatives  who  are 
obliged  to  do  their  bidding,  are  fast  remoulding  our  social 
system  in  ways  which  achieve  their  own  gain  through 
others'  loss.  Year  after  year  more  public  agencies  are 
established  to  give  what  seem  gratis  benefits,  at  the 
expense  of  those  who  pay  taxes,  local  and  general;  and  the 
mass  of  the  people,  receiving  the  benefits  and  relieved 
from  the  cost  of  maintaining  the  public  agencies,  advocate 
the  multiplication  of  them. 

It  is  not  ti'ue,  then,  that  the  possession  of  political  power 
by  all  ensures  justice  to  all.  Contrariwise,  experience 
makes  obvious  that  which  should  have  been  obvious  without 
experience,  that  with  a  universal  distribution  of  votes  the 
larger  class  will  inevitably  profit  at  the  expense  of  the 
smaller  class.  Those  higher  earnings  which  more  efficient 
actions  bring  to  the  superior,  will  not  be  all  allowed  to 
remain  with  them,  but  part  will  be  drafted  off  in  some 
indirect  way  to  eke  out  the  lower  earnings  of  the  less 
diligent  or  the  less  capable;  and  in  so  far  as  this  is  done, 
the  law  of  equal  freedom  must  be  broken.  Evidently  the 
constitution  of  the  State  appropriate  to  that  industrial  type 
of  society  in  which  equity  is  fully  realized,  must  be  one  in 
which  there  is  not  a  representation  of  individuals  but  ai 
representation  of  interests.  For  the  health  of  the  social 
organism  and  the  welfare  of  its  members,  a  balance  of 
functions  is  requisite;  and  this  balance  cannot  be  main- 
tained by  giving  to  each  function  a  power  proportionate  to 
the  number  of  functioD.aries.     The  relative  importance  of 


THE  CONSTITUTION   OF   THE    STATE.  193 

the  different  functions  is  not  measured  by  tlie  number  of 
units  occupied  in  discharging-  them ;  and  hence  the  general 
welfare  will  not  be  achieved  by  giving  to  the  various  parts 
of  the  body  politic,  powers  proportionate  to  their  sizes. 

§  107.  Whether  hereafter  there  will  arise  a  form  of 
society  in  which  equal  political  powers  may  be  given  to 
individuals,  without  giving  to  classes  powers  which  they 
will  misuse,  is  an  unanswerable  question.  It  may  be  that 
the  industrial  type,  perhaps  by  the  development  of  co- 
operative organizations,  which  theoretically,  though  not  at 
present  practically,  obliterate  the  distinction  between 
employer  and  employed,  may  produce  social  arrangements 
under  which  antagonistic  class-interests  will  either  not  exist, 
or  will  be  so  far  mitigated  as  not  seriously  to  complicate 
matters.  And  it  may  be  that  in  times  to  come  men's  regard 
for  others'  interests  will  so  far  check  undue  pursuit  of 
their  own  interests,  that  no  appreciable  class-legislation 
wall  result  from  the  equal  distribution  of  political  powers. 
But  the  truth  we  have  to  recognize  is  that  with  such 
humanity  as  now  exists,  and  must  for  a  long  time  exist, 
the  possession  of  what  are  called  equal  political  rights  will 
not  insure  the  maintenance  of  equal  rights  properly  so-called. 
.  Moreover,  that  constitution  of  the  State  which  relative 
ethics  justifies  must,  for  another  reason,  diverge  widely 
from  that  justified  by  absolute  ethics.  The  forms  of 
government  appropriate  to  existing  civilized  societies  must 
be  transitional  forms.  J^s  implied  throughout  the  argu- 
ment, the  constitution  of  a  State  devoted  to  militancy  must 
be  fundamentally  unlike  the  constitution  of  a  State  devoted 
to  industrialism ;  and  during  the  stages  of  progress  from 
the  one  to  the  other,  mixed  forms  of  constitution  have  to 
be  passed  through — variable  forms  which  are  adjusted  now 
to  the  one  sot  of  requirements,  now  to  the  other,  as  con- 
tingencies determine.  For,  as  I  have  shown  elsewhere 
{Princijyles  of  Sociology,  §§  547-575),  if  we  exclude  those 


194  JUSTICE. 

non-progressive  tj-pes  of  mankind  whicli  haye  evolved 
social  organizations  tliat  are  no  longer  changeable,  and 
contemplate  the  more  plastic  types  still  evolving,  individ- 
uall}'-  and  socially,  we  see  that  increase  in  either  kind  of 
social  action  begins  soon  to  produce  change  of  structure. 

We  must  therefore  conclude  that  there  is  a  quasi-ethical 
warrant  for  these  mixed  constitutions  of  the  State  which 
are  appropi-iate  to  these  mixed  requirements.  To  maintain 
the  conditions  under  whicli  individual  life  and  its  activities 
may  be  carried  on,  being  the  supreme  end ;  and  maintenance 
of  these  conditions  being  endangered,  now  by  masses  of 
external  enemies  and  now  by  single  internal  enemies;  it 
results  that  there  is  a  quasi-ethical  justification  for  such 
political  coustitation  as  is  best  adapted  to  meet  both  kinds 
of  dangers  at  any  particular  time ;  and  there  must  be 
tolerated  such  unfitness  for  the  one  end  as  is  necessitated 
by  fitness  for  the  other. 

§  108.  The  title  of  the  chapter  covers  a  further  ques- 
tion, which  must  not  be  passed  over — the  use  of  political 
power  by  women.  Already  we  have  concluded  that  in 
militant  societies,  and  partially  militant  societies,  the 
possession  of  the  franchise  by  women  is  not  strictly 
equitable :  they  cannot  justly  have  equal  powers  unless 
they  have  equal  responsibilities.  But  here,  supposing  that 
with  the  cessation  of  militancy  this  obstacle  should  dis- 
appear, we  have  to  ask  whether,  in  that  case,  the  giving  of 
votes  to  women  would  be  expedient.  I  say  expedient, 
because,  as  we  have  seen,  it  is  not  a  question  of  right  in 
the  direct  and  simple  sense.  The  question  is  whether 
rights,  properly  so  called,  are  likely  to  be  better  maintained 
if  women  have  votes  than  if  they  have  not.  There  are  some 
reasons  for  concluding  that  maintenance  of  them  would  be 
less  satisfactory  rather  than  more  satisfactory. 

The  comparative  impulsiveness  of  women  is  a  trait  which 
would  make  increase  of  their  influence  an  injurious  factor 


THE    CONSTITUTION   OP   THE    STATE.  195 

in  legislation.  Human  beings  at  lai-go,  as  at  present  con- 
stituted, are  far  too  much  swayed  by  special  emotions, 
temporarily  excited,  and  not  held  in  check  by  the  aggre- 
gate of  other  emotions;  and  women  are  carried  away  by 
the  feelings  of  the  moment  still  more  than  men  are.  This 
characteristic  is  at  variance  with  that  judicial-mindedness 
which  should  guide  the  making  of  laws.  Freedom  from 
passions  excited  by  temporary  causes  or  particular  objects, 
is  an  obvious  pre-requisite  to  good  legislation.  This  pre- 
requisite is  at  present  but  imperfectly  fulfilled,  and  it  would 
be  more  imperfectly  fulfilled  were  the  frauchise  exteuded 
to  women. 

This  moral  difference  is  accom;^anied  by  a  kindred  intel- 
lectual difference.  Very  few  men,  and  still  fewer  women, 
form  opinions  in  which  the  general  and  the  abstract  have 
a  due  place.  The  particular  and  the  concrete  are  alone 
operative  in  their  thoughts.  Nine  legislators  out  of  ten, 
and  ninety-nine  voters  out  of  a  hundred,  when  discussing 
this  or  that  measure,  think  only  of  the  immediate  results  to 
be  achieved — do  not  think  at  all  of  the  indirect  results, 
or  of  the  effect  which  the  precedent  will  have,  or  of  the 
influence  on  men's  characters.  Had  women  votes,  this 
absorption  of  consciousness  in  the  proximate  and  personal 
to  the  exclusion  of  the  remote  and  impersonal,  would  bo 
still  greater ;  and  the  immense  mischiefs  at  present 
produced  would  be  augmented. 

At  the  outset  it  was  shown  that  there  is  a  radical  opposi- 
tion between  the  ethics  of  the  family  and  the  ethics  of  the 
State,  and  that  introduction  of  either  into  the  sphere  of 
the  other  is  injurious — fatal,  indeed,  if  extensive  and 
continuous.  Character  is  that  which  eventually  determines 
conduct :  the  intelligence  joined  with  it  simply  serving  as  a 
ministei-,  procuring  satisfactions  for  those  feelings  which 
make  up  the  character.  At  present,  both  men  and  women 
are  led  by  their  feelings  to  vitiate  the  ethics  of  the  State 
by  introducing  the  ethics  of  the  family.    But  it  is  especially 


196  JUSTICE. 

in  tlie  nature  of  women^  as  a  concomitant  of  tlielr  maternal 
functions,  to  yield  benefits  not  in  proportion  to  deserts  but 
in  proportion  to  the  absence  of  deserts — to  give  most  where 
capacity  is  least.  The  love  of  the  helpless,  -which  may 
serve  as  a  general  description  of  the  parental  instinct, 
stronger  in  women  than  in  men,  and  swayiug  their  conduct 
outside  the  family  as  well  as  inside  more  than  it  sways  the 
conduct  of  men,  must  in  a  still  greater  degree  than  in  men 
prompt  public  actions  that  are  unduly  regardful  of  the 
inferior  as  compared  with  the  superior.  The  present 
tendency  of  both  sexes  is  to  contemplate  citizens  as  having 
claims  in  proportion  to  their  needs — their  needs  being 
habitually  proportionate  to  their  demerits;  and  this  ten- 
dency, stronger  in  women  than  in  men,  must,  if  it  operates 
politically,  cause  a  more  general  fostering  of  the  worse 
at  the  expense  of  the  better.  Instead  of  that  maintenance 
of  rights  which,  as  we  have  seen,  is  but  a  systematic  enforce- 
ment of  the  principle  that  each  shall  receive  the  good  and 
evil  results  of  his  own  conduct,  there  would  come  greater 
and  more  numerous  breaches  of  them  than  at  present. 
Still  more  than  now  would  the  good  which  the  superior 
have  earned  be  forcibly  taken  away  from  them  to  help 
the  inferior ;  and  still  more  tban  now  would  evils  which 
the  inferior  have  brought  upon  themselves  be  shouldered 
on  to  the  superior. 

Another  trait  of  nature  by  which  women  are  distin- 
guished, arises  by  adjustment,  not  to  the  maternal  relation 
but  to  the  marital  relation.  While  their  feelings  have 
become  moulded  into  special  fitness  for  dealing  with 
offspring,  they  have  also  become  adjusted  to  an  appro- 
priate choice  of  husbands — so  far  at  least  as  conditions 
have  allowed  them  to  choose.  Power,  bodily  or  mental,  or 
both,  is,  and  ever  has  been,  that  masculine  trait  which 
most  attracts  women ;  and  by  doing  so  furthers  multipli- 
cation to  the  stronger.  Varieties  in  which  this  instinctive 
preference  was  least  marked  must,  other  things  equal,  have 


THE    CONSTITUTION    OP    THE    STATE.  197 

ever  tended  to  disappear  before  other  varieties.  Hence  in 
women  a  worship  of  power  under  all  its  forms ;  and  hence  a 
relative  conservatism.  Authority,  no  matter  how  embodied '| 
— ^politicallj'-,  ecclesiasticall}^,  or  socially — sways  women  still [ 
more  than  it  sways  men.  Evidence  of  this  is  furnished 
by  societies  of  all  grades.  Sanctified  by  the  injunctions 
of  ancestry,  customs  are  adhered  to  by  women  more  than 
by  men,  even  where  instinctive  feelings  might  have  been 
expected  to  produce  an  opposite  effect;  as  instance  the 
adhesion  by  the  women  among  the  Juangs  to  something  less 
than  Eve's  dress  after  the  men  had  taken  to  loin-cloths. 
Eeligious  fanaticism,  which  is  the  expression  of  extreme 
subordination  to  a  power  conceived  as  supernatural,  has 
always  been  carried  further  by  women  than  by  men.  The 
difference  was  remarked  among  the  Greeks ;  observers 
have  noticed  it  in  Japan ;  instances  are  supplied  by  the 
Hindoos;  and  it  is  at  present  manifest  throughout  Europe. 
This  sentiment,  then,  which  power  and  the  trappings  of 
power  under  all  forms  excite,  must,  if  votes  were  given  to 
women,  strengthen  all  authorities,  political  and  ecclesiastical. 
Possibly  it  may  be  thought  that  under  present  conditions  a 
conservative  influence  of  this  kind  would  be  beneficial ;  and 
did  there  not  exist  the  trait  above  described,  this  might  be 
so.  But  co-operating  with  the  preference  for  generosity 
over  justice,  this  power- worship  in  women,  if  allowed  fuller 
expression,  would  increase  the  ability  of  public  agencies  . 
to  override  .individual  rights  in  the  pursuit  of  what  were  '. 
thought  beneficent  ends. 

Whether  in  time  to  come,  when  the  existing  political 
complications  caused  by  our  transitional  state  have  dis- 
appeared, such  evils  would  result,  is  another  question.  It 
is  quite  possible  that  the  possession  of  votes  by  women 
would  then  be  beneficial. 

But  the  immediate  enfranchisement  of  women  is  urged 
on  the  ground  that  without  it  they  cannot  obtain  legal 
recognition  of  their  equitable  claims.     Experience  does  not 


198  JUSTICE. 

countenance  tliis  plea.  During  tlie  last  tliirty  yeai'S  various 
disabilities  of  women  have  been  removed  with,  but  little 
resistance  from  men.  Comparing  the  behaviour  of  men  to  \ 
men  with  the  behaviour  of  men  to  women,  it  is  manifest 
that  in  modern  times  the  sentiment  of  justice  has  been 
more  operative  in  determining  the  last  than  in  determining 
the  first.  Ill-treated  classes  of  men  have  had  to  struggle 
far  longer  before  they  obtained  from  the  classes  who  ill- 
treated  them,  the  concessions  they  demanded,  than  women 
as  a  class  have  had  to  struggle  before  obtaining  from  men 
as  a  class,  the  various  freedoms  they  asked.  They  have 
obtained  these  without  political  power;  and  there  is  no 
reason  to  doubt  that  such  further  injustice  as  they  complain 
of — chiefly  in  respect  of  the  custody  of  children — may  be 
similarly  removed  without  making  the  gigantic  constitu- 
tional change  which  some  of  them  seek. 

That  this  probability  amounts,  indeed,  to  certainty,  will  be 
manifest  if  we  look  at  the  expectations  in  their  simplest 
form.  When  it  is  openly  contended  that  women  must  have 
the  suffrage  because  otherwise  they  cannot  get  from  men 
their  just  claims,  it  is  practically  contended  that  men  will 
concede  the  suffrage  knowing  that  with  it  they  concede 
these  claims,  but  will  not  concede  the  claims  by  themselves. 
A,  the  suffrage,  involves  the  establishment  of  B,  the  claims ; 
and  the  proposition  is  that  though  men  will  surrender  A 
plus  B,  they  will  not  surrender  B  by  itself  I 

§  109.  Under  the  head  of  the  constitution  of  the  State, 
something   must   be    said    concerning   the    distribution  of! 
State-burdens  as  well  as  the  distribution  of  State-power.! 
Clearly  there  is  as  much  reason  for  insisting  on  equitable 
sharing  in  the  costs  of  government  as  for  equitable  sharing 
in  the  direction  of  government. 

In  the  abstract  the  question  does  not  appear  to  present 
any  great  difficulty.  The  amounts  individually  paid  should 
be  proportionate  to  the  benefits  individually  received.     So 


THE    CONSTITUTION    OP   THE    STATE.  199 

far  as  these  are  alike,  tlie  burdens  borne  sliould  be  alike ; 
and  so  far  as  they  are  unlike,  the  burdens  borne  should  be 
unlike.  Hence  arises  a  distinction  between  the  public 
expenditure  for  protection  of  persons  and  the  public 
expenditure  for  protection  of  property.  As  life  and  personal 
safety  are,  speaking-  generally,  held  equally  valuable  by  all 
men,  the  implication  appears  to  be  that  such  public  expen- 
diture as  is  entailed  by  care  of  these  should  fall  equally 
on  all.  On  the  other  hand,  as  the  amounts  of  property 
possessed  at  the  one  extreme  by  the  wage-earner  and  at 
the  other  extreme  by  the  millionaire  differ  immensely,  the 
implication  is  that  the  amounts  contributed  to  the  costs  of 
maintaining  propoi-ty-rights  should  vary  immensely — should 
be  proportionate  to  the  amount  of  property  owned,  and  vary 
to  some  extent  according  to  its  kind.  In  respect  to  the 
costs  of  internal  protection  an  approximately  just  distri- 
bution seems  indicated  by  these  considerations;  but  in 
respect  of  external  protection  a  just  distribution  is  more 
difficult  to  conceive.  Invasion  endangers  both  property 
and  person.  The  citizen  may  be  robbed,  or  he  may  be 
injured  in  body,  or  he  may  lose  more  or  less  freedom.  A 
just  distribution  depends  on  the  relative  values  put  by  each 
on  these ;  and  no  expression  of  such  values,  either  special  or 
general,  seems  possible.  Hence  we  must  say  that  while 
mihtancy,  or  partial  militancy,  continues,  nothing  more  than 
a  rude  approximation  to  a  just  incidence  of  public  burdens 
can  be  made. 

One  conclusion,  however,  is  clear.  State-burdens,  how- 
ever proportioned  among  citizens,  should  be  borne  by  all. 
Every  one  who  receives  the  benefits  which  government 
gives  should  pay  some  share  of  the  costs  of  government, 
and  should  directly  and  not  indirectly  pay  it. 

This  last  requirement  is  all-important.  The  aim  of  the 
politician  commonly  is  to  raise  public  funds  in  such  ways 
as  shall  leave  the  citizen  partly  or  wholly  unconscious  of 
the  deductions  made  from  his  income.     Customs  duties  and 


200  JUSTICE. 

excise  duties  are  not  unfrequently  advocated  for  tlie  reason 
that  through  them  it  is  possible  to  draw  from  a  people  a 
larger  revenue  than  could  be  drawn  were  the  amount  con- 
tributed by  each  demanded  from  him  by  the  tax-gatherer. 
But  this  system,  being  one  which  takes  furtively  sums 
which  it  would  be  difficult  to  get  openly,  achieves  an  end 
which  should  not  be  achieved.  The  resistance  to  taxation, 
thus  evaded,  is  a  wholesome  resistance ;  and,  if  not  evaded, 
would  put  a  proper  check  on  public  expenditure.  Had 
each  citizen  to  pay  in  a  visible  and  tangible  form  his 
proportion  of  taxes,  the  sura  would  be  so  large  that  all 
would  insist  on  economy  in  the  performance  of  necessary 
functions  and  would  resist  the  assumption  of  unnecessary 
functions ;  whereas  at  present,  offered  as  each  citizen  is 
certain  benefits  for  which  he  is  unconscious  of  paying, 
he  is  tempted  to  approve  of  extravagance ;  and  is  prompted 
to  take  the  course,  unknowingly  if  not  knowingly  dishonest, 
of  obtaining  benefits  at  other  men's  expense. 

Daring  the  days  when  extensions  of  the  franchise  were 
in  agitation, a  maxim  perpetually  repeated  was — "Taxation 
without  representation  is  robbery."  Experience  has  since 
made  it  clear  that,  on  the  other  handj  representation  without 
taxation  entails  robbery. 


CHAPTER  XXV. 

THE   DUTIES   OP  THE   STATE. 

§  110.  Whether  or  not  they  accept  the  ethical  prin- 
ciples set  forth  in  the  opening  chapters  of  this  part,  most 
readers  will  agree  with  the  practical  applications  of  them 
made  in  subsequent  chapters.  Some,  indeed,  are  so  averse 
to  deductive  reasoning  that  they  would  gladly  reject  its 
results,  even  though  they  are  verified  by  induction,  could 
they  do  so.  But  the  results  in  this  case  reached  deductively, 
have  one  after  another  proved  to  be  beliefs  empirically 
established  among  civilized  men  at  large,  and,  with  in- 
creasing experience,  have  been  more  and  more  authorita- 
tively formulated  in  law ;  so  that  rejection  is  scarcely 
practicable. 

But  here  we  are  about  to  enter  on  topics  concerning 
which  there  are  divers  opinions.  To  avoid  raising  prejudices 
against  the  conclusions  reached,  as  being  reached  by  a 
disapproved  method,  it  will  be  best  to  proceed  by  a  method 
which  cannot  be  disapproved;  and  which,  however  in- 
sufficient taken  by  itself,  all  must  admit  to  be  good  as 
far  as  it  goes.  Let  us,  then,  commence  inductively  our 
inquiries  concerning  the  duties  of  the  State. 

If  the  admired  philosopher  Hobbes,  instead  of  deducing 
his  theory  of  the  State  from  a  pure  fiction,  had  prepared 
himself  by   ascertaining   the   facts  as   they   are    actually 


202  JUSTICE. 

presented  in  groups  of  primitive  men^  or  men  in  tlie  first 
stages  of  social  life,,  he  never  would  liave  propounded  it. 
Had  he  known  something  more  of  savages  as  they  really 
exist,  he  would  not  have  ascribed  to  them  those  ideals  of 
social  order  and  its  benefits,  which  are  the  products  of 
developed  social  life ;  and  he  would  have  learnt  that  sub- 
brdination  to  a  ruling  power  is  at  the  outset  not  in  the 
least  prompted  by  the  motive  he  assigns.  Instead  of  pro- 
ceeding a  priori  as  he  did,  let  us  proceed  a  j^osteriori — let 
us  contemplate  the  evidence. 

§  111.  The  first  fact  is  that  where  there  neither  is,  nor 
has  been,  any  war  there  is  no  government.  Already  it  has 
been  pointed  out  that  among  the  Esquimaux,  in  the  absence 
of  inter-tribal  conflicts,  there  are  scarcely  any  of  those  con- 
flicts between  members  of  the  tribe  which  Hobbes  assumes 
must  necessarily  arise  among  ungoverned  men.  If,  as 
occasionally  happens,  one  Esquimo  is  ill-used  by  another, 
his  remedy  is  an  appeal  to  public  opinion  through  a 
satirical  song.  The  Fuegians,  who  gather  in  tribes  of  from 
twenty  to  eighty,  have  no  chiefs ;  "  nor  did  they  seem  to 
require  one  for  the  peace  of  their  society,^'  says  Weddell. 
Of  the  Veddahs,  again,  we  read  that  the  small  clans  have 
divisions  of  the  forest  which  ''are  always  honourably 
recognized  •/'  and  the  head  man  of  each,  who  is  simply  the 
most  influential  person,  according  to  Tennant,  "exercises  no 
sort  of  authority  beyond  distributing  at  a  particular  season 
the  honey  captured  by  the  various  members  of  the  clan." 

The  second  fact  is  that  when  between  tribes  ordinarily 
peaceful  there  occur  wars,  leading  warriors  acquire  pre- 
dominant influence.  In  each  case  there  arises  some  man 
distinguished  from  others  by  greater  strength,  courage, 
skill  or  sagacity;  and  who,  consequently  deferred  to, 
becomes  acknowledged  leader.  But  at  first,  as  shown  us 
by  the  Tasmanians,  the  man  who  thus  acquires  predo- 
minance during  war,  loses  it  when  peace  is  re-established: 


THK    DUTIES    OF   THE    STATE.  203 

there  returns  tlie  state  of  equality  and  absence  of  govern- 
ment. As,  liowever,  the  wars  LctAvecn  tribes  commonly 
become  clirouiCj  it  usually  hnppeus  that  the  man  who  acts 
as  leader,  now  in  one  war  and  presently  in  another,  gains 
permanent  authority.  The  deference  shown  to  him  extends 
over  the  interval  between  the  wars,  as  well  as  during  the 
the  wars;  and  chieftainship  is  initiated.  The  Shoshones  or 
Snakes  of  North  America,  which  fall  into  three  divisions, 
well  illustrate  these  relationships  of  structure.  The 
Mountain  Snakes,  scattered  and  wandering  bands  of  men, 
who  make  no  combined  efforts  to  defend  themselves  again sb 
their  hostile  kindred,  have  no  government.  Among  the 
War-are-aree-kas,  or  Fish-eaters,  there  is  no  trace  of  social 
organization,  '^except  during  salmon-time;"  when,  resorting 
to  the  rivers  in  numbers,  there  arises  temporarily  "  some 
person  called  a  chief,''  whose  advice  is  accepted  rather  than 
obeyed.  And  then  the  Shirry-dikas,  who  hunt  buffaloes 
and  are  better  armed,  show  us  more  pronounced  chieftain- 
ship ;  though  authority  still  depends  on  "  the  personal 
vigour  of  the  chief  and  is  readily  transferred  to  another. 
Among  the  Comauches,  who  are  relatively  warlike,  chiefs 
have  more  power ;  though  the  office  is  not  hereditary,  but 
results  from  ''  superior  cunning,  knowledge,  or  success  in 
war."  And  from  these  stages  upwards  we  may  trace  the 
rise  of  definite  chieftainship  as  a  concomitant  of  chronic 
hostilities  with  other  tribes. 
.  The  third  fact  is  that  where  the  enterprising  leader  in 
war  subdues  adjacent  tribes,  and,  by  successive  conquests, 
forms  a  larger  consolidated  society,  his  supremacy  becomes 
settled ;  and  with  increase  of  his  power  goes  the  imposing 
of  his  will  in  other  than  militant  actions.  When,  by  this 
process,  nations  are  formed  and  chief's  grow  into  kings, 
governmental  power,  becoming  absolute,  becomes  also  co- 
extensive with  social  life.  Still  it  is  to  be  observed  that 
the  king  is  above  all  things  the  leader  in  war.  The  records 
of  the  Egyptians  and  Assyrians,  equally  with  the  records 


204  JUSTICE. 

of  European  nations,  show  that  the  ruler  is  primarily  tlie 
head  soldier. 

And  then,  groujoing  several  minor  facts  under  the  head 
of  a  fourth  fact,  we  see  that  where,  as  in  modern  nations, 
the  head  of  the  State  no  longer  commands  his  armies  in 
battle,  but  deputes  this  function,  he  nevertheless  is  nominally 
a  soldier — receives  a  military  or  naval  education.  Only  in 
republics  do  there  arise  civil  headships,  and  these  are  apt 
to  lapse  back  into  military  ones.  It  needs  only  continued 
war  to  transform  the  government  into  its  primitive  type  of 
a  military  dictatorship. 

Thus  induction  puts  beyond  doubt  the  truth  that  govern- 
ment is  initiated  and  developed  by  the  defensive  and 
offensive  actions  of  a  society  against  other  societies.  The 
primary  function  of  the  State,  or  of  that  agency  in  which 
the  powers  of  the  State  are  centralized,  is  the  function  of 
directing  the  combined  actions  of  the  incorporated  indi- 
viduals in  war.  The  first  duty  of  the  ruling  agency  is 
national  defence.  What  we  may  consider  as  measures  to 
maintain  inter-tribal  justice,  are  more  imperative,  and  come 
earlier,  than  measures  to  maintain  justice  among  individuals. 

§  112.  While  we  are  thus  taught  that  the  subordination 
of  citizens  to  rulers  has  at  first  no  such  purpose  as  that  which 
Hobbes  fancied,  we  are  also  taught  that  for  a  long  time  the 
fulfilment  of  such  purpose  is  not  even  attempted.  Many 
simple  societies  exist  permanently,  and  many  complex 
societies  have  existed  for  long  periods,  without  any 
measures  being  taken  by  the  ruler  to  prevent  aggressions 
of  individuals  on  one  another. 

While  the  necessity  for  combined  action  against  enemies  of 
the  tribe  is  obvious  and  peremptory,  and  prompts  obedience 
to  the  leader,  no  obvious  necessity  exists  for  defending  one 
member  of  the  tribe  against  another :  danger  to  tribal 
welfare  is  either  not  recognized  or  not  thought  great 
enough   to   call   for   interference.       While    there   was  no 


THE    DUTIES    OF   THE    STATE.  205 

Lcaclsliip  at  all,  and  during  times  wLen  licadsliip  existed 
only  as  long  as  war  lasted,  each  member  of  the  tribe 
maintained  Lis  own  claims  as  well  as  lie  could :  when 
injured,  he  did  his  best  to  injure  the  aggressor.  This  rude 
administration  of  justice,  which  wo  see  among  gregarious 
animals  as  well  as  among  primitive  hordes  of  men,  having 
been  a  recognized  custom  before  any  political  rule  existed, 
long  survived  the  establishment  of  political  rule,  as  being  a 
custom  accepted  from  ancestry  and  sanctified  by  tradition. 
Hence  in  all  early  societies  we  find  the  lex  talionis  in  force 
— now  independently  of  the  ruler,  and  now  recognized  by 
the  ruler. 

Beginning  with  the  North  American  Indians  we  read  of 
the  Snakes,  the  Creeks,  the  Dacotahs,  that  pi-ivate  wrongs 
were  avenged  by  the  injured  individuals  or  their  families ; 
that  among  the  Comanches  this  system  of  retaliation  was 
habitual,  though  councils  sometimes  interfered  without 
success  ;  and  that  among  the  Iroquois,  with  a  comparatively 
well-developed  government,  the  private  righting  of  wrongs 
was  permitted.  So  in  South  America,  the  Uaupes,  the 
Patagonians,  the  Araucanians  may  be  named  as  showing  us 
degrees,  more  or  less  marked,  of  political  subjection  co- 
existing with  primitive  administration  of  justice  by  each  man 
for  himself,  or  by  his  family  for  him.  In  Africa,  containing 
peoples  in  various  stages  of  advance,  we  meet  with  various 
mixtures  of  systems.  A  Bechuanas  king  or  chief  makes 
little  use  of  his  power  for  punishment  of  any  other  crimes 
than  those  committed  against  himself  or  his  servants.  An 
injured  man  among  the  East  Africans  sometimes  revenges 
himself  and  sometimes  appeals  to  the  chief.  Some  tribes 
of  Coast  Negroes  have  judicial  punishments,  while  in 
others  murder  is  avenged  by  deceased's  kindred;  and  there 
is  a  like  variation  in  Abyssinia.  Turning  to  Asiatics,  we 
find  that  among  the  Arabs  the  prevalence  of  one  or  other 
of  these  modes  of  checking  aggressions,  depends  on  the 
state  of  the  group  as  wandering  or  settled :    where  wan- 


206  JUSTICE. 

doring,  private  retaliation  and  enforced  restitution  is  tlie 
practice,  but  punisliment  by  a  ruler  is  usual  in  Arab  towns. 
By  the  Blieels  is  shown  a  ratio  between  the  chief's  punitive 
action  and  that  of  the  individual,  which  changes  according 
to  the  chief's  power;  and  by  the  Khonds,  who  pay  little 
respect  to  authority,  justice  is  enforced  by  private  action. 
The  custom  of  the  Karens,  too,  is  for  each  man  to  take 
the  law  into  his  own  hands  :  the  principle  being  that  of 
equal  damage. 

That  kindred  states  of  things  existed  among  the  Aryan 
tribes  which  peopled  Europe  in  early  days,  is  a  familiar  fact. 
Private  vengeance  and  public  punishment  were  mingled  in 
various  proportions :  tlie  one  decreasing  and  the  other 
increasing  along  with  progress  to  a  higher  state.  Says 
Kemble : — "The  right  of  feud  .  .  .  lies  at  the  root  of  all 
Teutonic  legislation  .  .  .  each  freeman  is  at  liberty  to 
defend  himself,  his  family  and  his  friends ;  to  avenge  all 
wrongs  done  to  them.''  Instead  of  being,  as  at  first,  his 
own  judge  respecting  the  extent  of  retaliation,  the  injured 
man  presently  came  to  have  restraints  put  upon  him  by 
custom;  and  there  grew  up  established  rates  of  compen- 
sation for  injuries,  varying  according  to  rank.  When 
political  authority  gained  strength,  the  first  step  was 
that  of  enforcing  the  customary  fines,  and,  in  default, 
permitting  private  rectification — "  Let  amends  be  made 
to  the  kindred,  or  let  their  war  be  borne."  During  this 
transitional  stage,  which  is  traceable  among  some  of  the 
German  tribes  when  first  described,  part  of  the  com- 
pensation went  to  the  man  or  family  injured,  while  part 
went  to  the  ruler.  Under  feudalism  the  system  of  private 
rectification  of  wrongs  slowly  yielded  to  the  public  recti- 
fication only  as  the  central  government  gained  power. 
The  right  of  private  war  between  nobles  continued  among 
ourselves  down  to  the  12th  and  13th  centuries,  and  in 
France  even  later.  So  deeply  rooted  was  it  that  in  some 
cases,  feudal  lords  thought  it  a  disgrace  to  maintain  their 


TQE    DUTIES    OF   THE    STATE.  207 

rights  in  any  other  ways  than   by  force  of  arms.     AVith 
all  which  we  must  join  the  loug  survival  of  judicial  duels 
,  and  of  private  duels. 

j  ^  The   facts   have    to   be    contemplated   under  two   other 
I  aspects.     Not  only  is  the  primary  function  of  government 
I  ■  that  of   combining   the  actions  of   the  incorporated  indi- 
I  viduals  for  war,  while  its  secondary  function  of  defending 
j  its  component  members  against  one  another  is  step  by  step 
I  established ;  but  this  secondary  function  arises  by  ditferen- 
I  tiation  from  the  primary  one.     Even  in  the  earliest  stages 
the  private  rectiJB cation  of  wrongs  is  in  part  the  business  of 
the  individual  wronged  and  in  part   the  business  of   his 
family  or  relatives.     The  progress  which  brings  develop- 
ment of  the  family  organization,   at   the  same  time  that 
it  brings  aggregation  of  clusters  of  families  or  clans  into 
a  society,  develops   the    doctrine    of  family  responsibility. 
i  That   is  to  say,   the  private  wars  between  family-groups 
come  to  be  of  the  same  nature  as  the  public  wars  between 
societies ;  and  the  enforcement  of   private  justice  is  akin 
to  the  enforcement  of  inter-tribal  justice.    Hence  arises  the 
idea,  which  seems  to  us  so  strange,  that  if,  when  a  member 
of  one  group  has  been  murdered,  a  member  of  the  group  to 
which   the   murderer   belongs    is    killed,    it   is    indifferent 
whether  the  victim  be  the  murderer  or  not.     The  group 
is  injured  to  an  equivalent  extent,  and  that  is  the  essential 
i  requirement. 

The  other  noticeable  aspect  of  the  facts  is  that  this  rude 
enforcing  of  justice  by  private  wars,  is  changed  into  public 
administration  of  justice,  not  because  of  the  ruler's  solicitude 
to  maintain  equitable  relations,  but  much  more  because  of 
his  solicitude  to  prevent  that  weakening  of  his  society 
which  internal  dissensions  must  produce.  Be  he  primitive 
chief,  or  be  he  captain  of  banditti,  a  leader  must  check 
fights  among  his  followers  ;  and  what  is  by  these  shown  on 
;a  small  scale  was  shown  on  a  larger  scale  when,  in  feudal 
itimes,  kings  forbad  private  wars  between  nobles  during  the 


208  JUSTICE. 

times  when  international  wars  were  going  on.  Manifestly 
a  king's  desire  to  maintain  a  social  order  wliich  conduces 
to  fighting  efiiciency,  prompts  the  practice  of  ai'bitrating 
between  antagonist  followers;  and  manifestly  appeals 
made  to  him  by  the  injured,  recognizing  as  they  do  his 
authority,  and  responded  to  for  this  reason,  tend  more  and 
more  to  establish  his  judicial  and  legislative  powers. 

Once  established,  this  secondary  function  of  the  State 
goes  on  developing;  and  becomes  a  function  next  in 
importance  to  the  function  of  protecting  against  external 
enemies.  The  truth  to  be  specially  emphasized  here,  is 
that  while  other  kinds  of  governmental  action  diminish, 
this  kind  of  governmental  action  increases.  Militant 
activities  may  become  gradually  less,  and  political  agency 
may  retire  from  various  regulative  actions  previously  exer- 
cised over  citizens.  But  with  the  pi'ogress  of  civilization^ 
the  administration  of  justice  continues  to  extend  and  to 
become  more  efficient. 

§  113.  And  now,  having  reached  these  conclusions 
inductively,  let  us  see  whether  corresponding  conclusions 
cannot  be  reached  deductively.  Let  us  see  whether  fromi 
the  natures  of  men  as  socially  conditioned,  it  is  not  inferable! 
that  these  two  State-duties  are  the  essential  ones. 

At  the  outset  it  was  shown  that  the  prosperity  of  a  species 
is  achieved  by  conformity  to  two  opposite  principles,  appro 
priate  to  the  young  and  to  the  adult  respectively  :  benefits 
being  inversely  proportioned  to  worth  in  the  one  case  am 
directly  proportioned  to  worth  in  the  other.  Confining  oui 
attention  to  the  last  of  these  principles,  which  now  alonej 
concerns  us,  it  is  clear  that  maintenance  of  those  conditiona 
under  which  each  one's  efforts  bring  their  rewards  is,  in  thai 
ease  of  a  society,  liable  to  be  traversed  by  external  foes  and( 
by  internal  foes.  The  implication  is  that  for  the  prosperity! 
of  a  species,  or  in  this  case  of  a  society,  these  conditions 
must  be  maintained  by  a  due  exercise  of  force ;  and  for  the 


THE  DUTIES  OF  THE  STATE.  209 

I  exercise  of  sncli  force  the  corporate  action  of  tlio  society  is 
'  demanded — imperatively  in  the  one  case  and  witli  some- 
thing approaching  to  imperativeness  in  the  other.  To  such 
exercise  of  force,  citizens  at  large  (excluding  criminals) 
Lave  good  reasons  to  assent.     Observe  tbeir  motives. 

Such  contingent  loss  of  life  and  partial  loss  of  liberty  as 
are  entailed  on  soldiers,  and  such  deductions  from  their 
earnings  as  other  citizens  have  to  contribute  to  support 
soldiers,  are  felt  by  each  to  be  justified  as  instrumental  to 
the  supreme  end  of  enabling  him  to  carry  on  his  activities 
land  to  retain  the  reward  for  them — sacrifice  of  a  part  to 
lensure  the  remainder.  Hence  he  tacitly  authorizes  the 
required  State-coercion. 

I  Though  the  need  for  corporate  guardianship  against 
I  [internal  foes  is  less  urgently  felt,  yet  from  the  pursuit  of 
his  ends  by  each  there  arises  a  resultant  desire  for  such 
guardianship.  As  in  every  community  the  relatively-strong 
are  few,  and  the  relativelj^-weak  are  many,  it  happens 
that  in  the  majority  of  cases  purely  private  rectification 
'of  wrongs  is  impracticable.  If  beyond  the  aid  of  family 
•and  friends,  often  inadequate,  there  can  be  obtained  the 
aid  of  some  one  more  powerful,  it  is  worth  buying — at 
Srst  by  a  bribe,  and  presently  by  tribute.  Eventually, 
ill  find  it  answer  best  to  pay  for  security  rather  than 
suffer  aggressions. 

•  Thus  these  primary  and  secondary  duties  of  the  State  are 
mplied  by  those  fundamental  needs  which  associated  men 
experience.  They  severally  desire  to  live,  to  carry  on  their 
ictivities,  and  reap  the  benefits  of  them.  All  have  motives 
;o  maintain  against  external  enemies  the  conditions  under 
vhich  these  ends  may  be  achieved,  and  all,  save  aggressors 
)f  one  or  other  kind,  have  motives  to  maintain  these  con- 
litions  against  internal  enemies.  Hence  at  once  the  duty 
)f  the  State  and  the  authority  of  the  State. 

§  114.  If  these  duties  devolve  upon  the  State,  then  the 
10 
fel 


210  JUSTICE. 

State  is  under  obligation  to  take   sucli   measures  as  are 
needful  for  efficiently  discharging  tliem. 

That  defensive  appliances  sufficient  to  meet  imminent 
dangers  must  be  provided,  every  one  admits.  Even  where 
no  attack  by  foreign  foes  seems  likely,  there  should  be 
maintained  adequate  forces  to  repel  invasion ;  since  total 
unpreparedness  may  invite  attack.  Though  in  this  part  of 
the  world,  and  in  our  days,  descents  made  without  excuse  by 
plundering  hordes  may  not  have  to  be  guarded  against ;  yet 
the  readiness  shown  by  peoples  called  civilized  to  hurl  large 
armies  upon  one  another  with  but  small  provocation,  makes 
it  manifest  that  even  the  most  advanced  nations  cannot 
prudently  trust  their  neighbours.  What  amount  of  military 
power  is  needful  for  safeguarding,  of  course  depends  on 
circumstances,  and  is  a  matter  of  judgment  in  each  case. 

But  while  the  need  for  maintaining  such  an  organization 
as  is  requisite  for  duly  discharging  the  first  duty  of  the 
State  is  fully  recognized,  the  need  for  maintaining  such  an 
organization  as  is  requisite  for  duly  discharging  its  second 
duty  is  far  from  fully  recognized.  As  we  have  seen  above,  the 
defence  of  citizens  one  against  another,  not  at  first  a  business 
of  the  government,  has  been  undertaken  by  it  but  gradually; 
and  even  in  the  most  civilized  societies  its  discharge  of  thisi 
business  is  still  but  partial,  and  the  propriety  of  full  dis-^ 
charge  of  it  is  denied.     I  do  not  of  course  mean  that  thfj 
responsibility  of  the  State  for   guarding   citizens   againslj 
oflenders  classed  as  criminal,  is  not  admitted  and  fulfilled! 
but  I  mean  that  the  State  neither  admits,  nor  is  supposes 
by  citizens  to  have,  any  responsibility  for  guarding  thei 
against   offenders  classed   as    civil.  '    Though,    if  one  wh, 
receives  a  rude  push  invokes  the  agents  of  the  State,  the;i| 
will  take  up  his  case  and  punish  the  assailant;    yet  if  h 
is  defrauded  of  an  estate  they  turn  deaf  ears  to  his  comi 
plaint,  and  leave  him  either  to  bear  the  loss,  or  run  the  ris^ 
of  further  and  perhaps  greater  loss  in  carrying  on  a  suit  and 
possibly  appeals. 


THE    DUTIES    OP   THE    STATE.  211 

Not  hj  lawyers  only,  but  by  most  other  people  this  con- 
dition of  things  is  defended  ;  and  the  proposition  that  it  is 
the  duty  of  the  State  to  administer  justice  without  cost,  in 
civil  as  well  as  in  criminal  cases,  is  ridiculed  :   as,  indeed, 
every   more   equitable    arrangement   is    ridiculed    before 
successful  establishment  of  it  proves  its  propriety.     It  is 
argued  that  did  the  State  arbitrate  between  men  gratis,  the 
courts  would  be  so  choked  with  cases  as  to  defeat  the  end 
i  by  delay :  to  say  nothing  of  the  immense  expense  entailed 
j  on   the  country.     But   this    objection   proceeds   upon   the 
i  vicious  assumption  that  while  one  thing  is  changed  other 
I  things  remain  the  same.     It  is  supposed  that  if  justice  were 
I  certain  and  could  be  had  without  cost,  the  number  of  tres- 
^  passes  would  be  as  great  as  now  when  it  is  uncertain  and 
expensive  !     The  truth  is  that  the  immense  majority  of  civil 
;  offences  are  consequent  on  the  inefficient  administi-ation  of 
justice — would  never  have  been  committed  had  the  penalties 
I  been  certain. 

■  But  when  we  come  to  contemplate  it,  it  is  a  marvellous 
proposition,  this  which  the  objection  implies,  that  multi- 
tudinous citizens  should  be  left  to  bear  their  civil  wrongs  in 
j  silence  or  risk  ruin  in  trying  to  get  them  rectified ;  and  all 
i  because  the  State,  to  which  they  have  paid  great  sums  in 
j  taxes,  cannot  be  at  the  trouble  and  expense  of  defending 
them  !  The  public  evil  of  discharging  this  function  would 
be  so  great,  that  it  is  better  for  countless  citizens  to  suffer  the 
evils  of  impoverishment  and  many  of  them  of  bankruptcy  ! 
Meanwhile,  through  the  officers  of  its  local  agents,  the  State 
is  careful  to  see  that  their  stink-traps  are  in  order  ! 

§  115.  One  further  duty  of  the  State,  indirectly  included 
in  the  last  but  distinguishable  from  it,  must  be  set  down, 
bnd  its  consequences  specified.  I  refer  to  its  duty  in 
irespect  of  the  inhabited  territory. 

For  employments  of  the  surface  other  than  those  already 


212  JUSTICE. 

establisTied,  and  tacitly  authorized  by  tiie  community  tlirongh 
its  government,  there  require  State  -  authorizations.  A3 
trustee  for  the  nation  the  government  has  to  decide  whether 
a  proposed  undertaking — road,  canal,  railway,  dock,  &c. — 
w^hich  wall  so  change  some  tract  as  to  make  it  permanently 
useless  for  ordinary  purposes,  promises  to  be  of  such  public 
utility  as  to  warrant  the  alienation  ;  and  has  to  fix  the  terms 
for  its  warrant :  terms  which,  while  they  deal  fairly  with 
those  who  stake  their  capital  in  the  enterprise,  and  while 
they  protect  the  rights  of  the  existing  community,  also 
keep  in  view  the  interests  of  future  generations,  who  will 
hereafter  be  supreme  owners  of  the  territory.  For  the 
achievement  of  these  several  ends,  the  equitable  arrange- 
ment would  seem  to  be,  not  a  permanent  alienation  of  the 
required  tract ;  nor  an  unscrupulous  breaking  of  the  con- 
tract by  the  State  at  will,  as  now ;  but  an  alienation  for  a 
specified  period,  with  the  understanding  that  the  conditions 
ma^^,  at  the  termination  of  that  period,  be  revised. 

In  discharge  of  its  duties  as  trustee,  the  ruling  body  hasi 
to  exercise  a  further  control — allied  but  different.  If  noi 
itself,  then  by  its  local  deputies,  it  has  to  forbid  or  allow  tb 
breaking  up  of  streets,  roads,  and  other  public  spaces  fo] 
the  establishment  or  repair  of  water,  gas,  telegraph,  am 
kindred  appliances.  Such  supervisions  are  required  foi 
protecting  each  and  all  members  of  the  communii 
against  the  aggressions  of  particular  members  or  group 
of  members. 

-  That  like  considerations  call  for  oversight  by  the  State  0: 
rivers,  lakes,  or  other  inland  waters,  as  also  of  the  adjacen 
sea,  is  sufficiently  clear.  On  the  uses  made  of  these  andi 
their  contents,  there  may  rightly  be  put  such  restraints  asi 
the  interests  of  the  supreme  owner,  the  communitj,  demand. 

§  116.  And  now  what  are  these  duties  of  the  State  coni 
sidered  under   their  most  general   aspect?     What  has  ij 


THE    DUTIES    OP   THE    STATE.  213 

society  in  its  corporate  capacity  to  do  for  its  memLers  in 
their  individual  capacities  ?  The  answer  may  be  given  in 
several  ways. 

The  prosperity  of  a  species  is  best  subserved  when  among 
adults  each  experiences  the  good  and  evil  results  of  his  own 
nature  and  consequent  conduct.*'  In  a  gregarious  species 
fulfilment  of  this  need  implies  that  the  individuals  shall  not 
so  interfere  with  one  another  as  to  prevent  the  i-eceipt  by 
each  of  the  benefits  which  his  actions  naturally  bring  to 
him,  or  transfer  to  others  the  evils  which  his  actions 
naturally  bring.  '^'This,  which  is  the  ultimate  law  of  species 
life  as  qualified  by  social  conditions,  it  is  the  business 
of  the  social  aggregate,  or  incorporated  body  of  citizens, 
to  maintain. 

-  This  essential  requirement  has  to  be  maintained  by  all 
for  each,  because  each  cannot  effectually  maintain  it  for 
himself.  He  cannot  by  himself  repel  external  invaders ; 
and  on  the  average,  his  resistance  to  internal  invaders,  if 
made  by  himself  or  with  the  aid  of  a  few,  is  either  inefficient, 
or  dangerous,  or  costly,  or  wasteful  of  time,  or  all  of  these. 
To  which  add  that  universal  self-defence  implies  chronic 
antagonisms,  either  preventing  or  greatly  impeding  co- 
operation and  the  facilitations  to  life  which  it  brings. 
Hence,  in  distinguishing  between  things  to  be  done  by 
coi'porate  action  and  things  to  be  done  by  individual 
action,  it  is  clear  that,  whether  or  not  it  does  anything 
else,  corporate  action  may  rightly  be  used  to  prevent 
interferences  with  individual  action  beyond  such  as 
the  social  state  itself  necessitates. 

Each  citizen  wants  to  live,  and  to  live  as  fully  as  his 
surroundings  permit.  This  being  the  desire  of  all,  it  results 
that  all,  exercising  joint  control,  are  interested  in  seeing  that 
while  each  does  not  suffer  from  breach  of  the  relation 
between  acts  and  ends  in  his  own  person,  he  shall  not 
break  those  relations  in  the  persons  of  others.  The 
incorporated  mass  of  citizens  has  to  maintain  the  conditions 


214  JUSTICE. 

under  wliicli  eacli  may  gain  the  fullest  life  compatible  with 
the  fullest  lives  of  fellow  citizens. 

Whether  the  State  has  other  duties  is  a  question  which 
remains  now  to  be  discussed.  Between  these  essential 
functions  and  all  other  functions  there  is  a  division  which, 
though  it  cannot  in  all  cases  be  drawn  with  precision,  is  yet 
broadly  marked.  To  maintain  intact  the  conditions  under 
which  life  may  be  carried  on  is  a  business  fundamentally 
distinct  from  the  business  of  interfering  with  the  carrying 
on  of  the  life  itself,  either  by  helping  the  individual  or 
directing  him,  or  restraining  him.  We  will  first  inquire 
w^hetber  equity  permits  the  State  to  undertake  this  further 
business  ;  and  we  will  then  inquire  whether  considerations 
of  policy  coincide  with  considerations  of  equity. 


CHAPTER  XXVI. 

THE  LIMITS  OF   STATE-DUTIES. 

§  117.  During  tliose  early  stages  in  wliicTi  the  Family 
and  the  State  were  not  differentiated,  there  naturally  arose 
the  theory  of  paternal  government.  The  members  of  the 
group  were  "held  together  by  common  obedience  to  their 
highest  living  ascendant,  the  father,  grandfather,  or  great- 
grandfather." Ignoring  those  still  earlier  social  groups  of 
which  Sir  Henry  Maine  takes  no  account,  we  may  accept 
his  generalization  that  among  Aryan  and  Semitic  peoples, 
the  despotic  power  of  the  father  over  his  children,  surviving 
more  or  less  as  his  children  became  heads  of  families,  and 
as  again  their  children  did  the  same,  gave  a  general  cha- 
racter to  the  control  exercised  over  all  members  of  the 
group.  The  idea  of  government  thus  arising,  inevitably 
entered  into  the  idea  of  government  which  became  estab- 
lished as  compound  families  grew  into  communities ;  and  it 
survived  when  many  of  such  small  communities,  not  allied 
in  blood  or  but  remotely  allied,  became  consolidated  into 
larger  societies. 

'--The  theory  of  paternal  government  originating  in  this  way 
is  a  theory  which  tacitly  asserts  the  propriety  of  unlimited 
government.  The  despotic  control  of  the  father  extends  to 
all  acts  of  his  children;  and  the  patriarchal  government 
growing  out  of  it,  naturally  came  to  be  exercised  over  the 
entire  lives  of  those  who  were  subject.     The  stage  was  one 


216  JUSTICE. 

in  which  distinctions  and  limitations  had  not  yet  arisen; 
and  while  the  group  retained  something  like  its  original 
constitution,  having  in  the  main  a  common  origin  and 
holding  in  partial  if  not  entire  community  the  inhabited 
tract  and  its  produce,  the  conception  of  government  aS' 
unlimited  in  range  was  probably  one  best  adapted  to 
the  requirements. 

But  this  ancient  social  idea,  like  ancient  religious  ideas, 
survives,  or  continually  re-appears,  under  conditions  utterly 
unlike  those  to  which  it  was  appropriate.  The  notion  of 
paternal  goveimment  is  entertained  in  a  vague  sentimental 
way,  without  any  attempt  being  made  definitely  to  conceive 
its  meaning;  and  consequently  without  any  perception  of 
the  inapplicability  of  the  notion  to  developed  societies. 
For  none  of  the  traits  of  paternal  government  as  it  origin- 
ally arose,  exists  now,  or  is  possible.    Observe  the  contrasts. 

Fatherhood  habitually  implies  ownership  of  the  means 
by  which  children  and  dependents  are  supported;  and 
something  like  such  ownership  continued  under  the  patri- 
archal form  of  rule.  But  in  developed  nations  not  only  is 
this  trait  absent,  but  the  opposite  trait  is  present.  The 
governing  agent  does  not  now  support  those  over  whom 
it  exercises  authority,  but  those  over  whom  it  exercises 
authority  support  the  governing  agent.  Under  paternal 
rule,  truly  so  called,  the  possessor  of  the  power,  being 
possessor  of  everything  else,  was  benefactor  to  his  children 
as  well  as  controller  of  them ;  whereas  a  modern  govern- 
ment, along  with  a  power  which  is  in  chief  measure  given 
by  those  who  are  supposed  to  stand  in  the  place  of  children, 
cannot  be  in  such  sense  a  benefactor,  but  has  to  receive 
fTom  the  children  the  means  which  enable  it  to  do  anything 
for  them.  Again,  in  simple  and  compound  famdy-groups 
there  is  an  approach  to  identity  of  interests  between  rulers 
and  ruled  :  the  bonds  of  blood-relationship  go  far  to  insure 
St  regulative  action  conducive  to  the  general  welfare.  But 
in  advanced  societies  there  enter  into  the  political  relations 


THE   LIMITS    OF   STATE-DUTIES.  217 

no  sucli  emotions  as  those  arising  from  family  fcelinf" 
and  kinship,  which  serve  to  check  the  self-seeking  of  the 
ruling  agent,  be  it  king,  oligarchy,  or  such  democratic 
body  as  the  United  States  show  us.  Once  more,  the  sup- 
posed parallel  fails  in  respect  of  knowledge  and  wisdom. 
With  the  primitive  paternal  power,  and  the  patriarchal 
power  derived  from  it,  there  generally  went  wider  expe- 
rience and  deeper  insight  than  were  possessed  by  tho 
descendants  who  were  ruled.  But  in  developed  societies 
no  such  contrast  exists  between  the  mental  superiority  of 
those  supposed  to  stand  in  the  position  of  father,  and  the 
mental  inferiority  of  those  supposed  to  stand  in  the  posi- 
tion of  children.  Contrariwise,  among  those  figuratively 
spoken  of  as  children,  there  exist  many  who  are  at  once 
better  informed  and  intellectually  stronger  than  the  ruling- 
head,  single  or  multiple,  as  the  case  may  be.  And  where, 
the  head  being  multijjle,  the  so-called  children  have  to 
choose  from  among  themselves  those  who  shall  constitute 
it,  they  habitually  ignore  the  best-fitted  :  the  result  being 
that  rule  is  exercised  not  so  much  by  the  collective  wisdom 
as  by  the  collective  folly — the  paternal  and  filial  relation  is 
in  another  way  reversed. 

Hence  that  theory  of  the  functions  of  the  State  which  is 
based  on  this  assumed  parallelism  is  utterly  false.  Tho 
only  justification  for  the  analogy  between  parent  and  child 
and  government  and  people  is  the  childishness  of  the  people 
who  entertain  the  analogy. 

§  118.  A  conception  of  State-duties  which  is  connate  with 
the  last  but  gradually  diverges  from  it,  must  next  be 
noticed.  I  refer  to  the  conception  generated  by  experiences 
of  those  governmental  actions  needful  for  carrying  on  wars, 
which,  up  to  recent  times,  have  been  its  chief  actions. 

In  social  groups  of  types  preceding  the  patriarchal, 
headship  becomes  established  by  frequent  wars;  and  in 
the  patriarchal  group  the  head  of  the  warriors  is  ordinarily 


218  JUSTICE. 

head  of  the  State.  Tliis  identity^  continuing  through  sub- 
sequent stages^  determines  the  nature  of  government  at 
large.  That  men  may  be  good  soldiers  they  must  not  only 
be  subordinate,  grade  under  grade,  and  must  not  only  be 
drilled  in  warlike  exercises,  but  must  have  their  daily 
habits  regulated  in  ways  conducive  to  efficiency.  More 
than  this :  the  soldier-king,  regarding  the  whole  com- 
munity as  a  body  from  which  soldiers  and  supplies  are  to 
be  drawn,  extends  his  control  over  the  entire  lives  of  his 
subjects.  And  since  nations  in  general  have  been,  as 
many  of  them  still  are,  predominantly  militant,  this  idea 
of  governmental  power,  with  its  concomitant  idea  of  the 
duties  of  the  State,  has  been  almost  universal. 

In  the  most  militant  of  Greek  States,  Sparta,  preparation 
for  war  was  the  business  of  life,  and  the  whole  of  life  was 
regulated  with  a  view  to  this  preparation.  Though  in 
Athens  no  such  strenuous  efforts  to  achieve  this  end  were 
made,  yet  there  was  a  recognition  of  this  end  as  the  pre- 
dominant one.  Plato's  ideal  republic  was  one  in  which, 
by  education,  citizens  were  to  be  moulded  into  fitness  for 
social  requirements,  of  which  the  chief  was  national  defence; 
and  this  power  of  the  incorporated  community  over  its 
units  was  to  go  to  the  extent  of  regulating  the  procreation 
of  them, both  by  selection  of  parents  and  by  due  adjustment 
of  their  ages.  So,  too,  in  Aristotle's  Politics,  it  is  urged 
that  education  should  be  taken  out  of  the  charge  of  parents, 
and  that  the  different  classes  of  citizens,  differently  educated, 
should  be  respectively  adapted  to  public  needs  :  authority 
being  also  assigned  to  the  legislator  to  regulate  marriage 
and  the  begetting  of  children.  Thus  the  conception  of 
governmental  functions  developed  by  militancy,  and  appro- 
priate to  a  fighting  body,  becomes  the  conception  of 
governmental  functions  at  large. 

Here,  as  before,  we  see  that  ideas,  sentiments,  and  habits 
appropriate  to  early  stages  of  development  survive  through- 
out later  stages,  to  which  they  are  no  longer  appropriate; 


THE   LIMITS    OP   STATE-DUTIES.  219 

and  pervert  the  prevailing  beliefs  and  actions.  For  by- 
many  the  conception  of  State-duties  that  was  fit  for  Greek 
societies,  is  supposed  to  be  fit  for  modern  societies.  Though 
the  best  social  organization  as  conceived  by  Socrates  and 
approved  by  Plato,  was  one  in  which  the  industrial  classes 
were  to  be  absolutely  subject  to  the  classes  above  them — 
though,  in  his  Politics,  Aristotle,  regarding  the  family  as 
normally  consisting  of  freemen  and  slaves,  taught  that  in 
the  best-regulated  States  no  mechanic  should  be  a  citizen, 
and  that  all  tillers  of  the  ground  should  be  serfs ;  yet  it 
is  believed  that  we  may  with  advantage  adopt  the  accom- 
panying theory  of  State-duties  !  One  whose  conceptions  of 
right  and  wrong  were  shown  in  the  belief  that  it  is  impos- 
sible for  a  man  who  lives  the  life  of  a  mechanic  or  hired- 
servant  to  practise  virtue,  is  supposed  to  be  one  to  whose 
conceptions  of  right  and  wrong  in  social  affairs  we  may 
wisely  defer  !  It  is  thought  that  the  ideas  appropriate  to 
a  society  organized  throughout  on  relations  of  status,  are 
adapted  to  a  society  organized  throughout  on  relations  of 
contract !  A  political  ethics  belonging  to  a  system  of 
compulsory  co-operation  applies  also  to  a  system  of 
voluntary  co-operation ! 

§  119.  There  is  indeed  the  excuse  that  to  some  extent 
among  ourselves,  and  to  a  much  larger  extent  among 
continental  peoples,  the  militant  life,  potential  when  not 
actual,  still  forms  so  considerable,  and  in  many  cases  so 
great,  a  part  of  the  social  life  as  to  render  these  tradi- 
tional doctrines  appropriate. 

Compromise  between  old  and  new,  which  has  perpetually 
to  be  made  in  practice,  has  to  be  made  also  in  theory ;  for 
this  must,  on  the  average,  conform  itself  to  practice.  It  is 
therefore  out  of  the  question  that  there  can  be  generally 
entertained  the  belief  that  governmental  action  should  be 
subject  to  certain  imperative  restraints.  The  doctrine  that 
there  is  a  limited  sphei'e  within  which  only  State-control 


220  JUSTICE. 

may  rightly  be  exercised,  is  a  doctrine  natural  to  the 
peaceful  and  industrial  type  of  society  when  fully  developed ; 
and  is  not  natural  either  to  the  militant  type  or  to  types 
transitional  between  militancy  and  industrialism.  Just 
relations  between  the  community  and  its  units  cannot  exist 
during  times  when  the  community  and  its  units  are  jointly 
and  severally  committing  injustices  abroad.  Men  who  hire 
themselves  out  to  shoot  other  men  to  order,  asking  nothing 
about  the  equity  of  their  cause,  are  not  men  by  whom  there 
can  be  established  equitable  social  arrangements.  While 
the  nations  of  Europe  are  partitioning  among  themselves 
parts  of  the  Earth  inhabited  by  inferior  peoples,  with  cynical 
indifference  to  the  claims  of  these  peoples,  it  is  foolish  to 
expect  that  in  each  of  these  nations  the  government  can 
have  so  tender  a  regard  for  the  claims  of  individuals  as  to 
be  deterred  by  them  from  this  or  that  apparently  politic 
measure.  So  long  as  the  power  to  make  conquests  abroad 
is  supposed  to  give  rights  to  the  lands  taken,  there  must 
of  course  persist  at  home  the  doctrine  that  an  Act  of 
Parliament  can  do  anything — that  the  aggregate  will  may 
rightly  impose  itself  on  individual  wills  without  any  limit. 

It  may  indeed  be  contended  with  reason  that  under 
existing  conditions  belief  in  the  unrestricted  authority  of 
the  State  is  necessary.  The  tacit  assumption  that  the  con- 
trolling agency  which  a  community  appoints  or  accepts,  is 
subject  to  no  restraints,  has  the  defence  that  without  it 
there  could  not  be  ensured  that  combined  action  from  time 
to  time  required  for  meeting  emergencies.  As  in  war  lack 
of  faith  in  a  leader  may  be  a  cause  of  defeat,  so  in  war 
scepticism  respecting  governmental  authority  may  produce 
fatal  hesitations  and  dissensions.  So  long,  therefore,  as 
the  religion  of  enmity  so  largely  qualifies  the  religion  of 
amity,  the  doctrine  of  unlimited  State-authority  must  prevail. 

§  120.  And  now,  having  seen  how  the  current  conception 
of    State-duties  originated,  and  how  it  has   survived   into 


THE    LIMITS    OP    STATE-DUTIES.  221 

modern  conditions  for  -which  it  is  but  partially  adapted, 
we  are  the  better  prepared  to  entertain  the  true  conception 
of  State-duties.  After  recognizing  the  probability,  if  not 
the  certainty,  that  a  theory  concerning  the  proper  sphere 
of  government  which  was  fit  for  societies  organized  on 
the  principle  of  compulsory  co-operation,  must  be  unfit  for 
societies  organized  on  the  principle  of  voluntary  co-opera- 
tion, we  may  proceed  to  ask  what  is  the  theory  appropriate 
to  these. 

Each  nation  constitutes  a  variety  of  the  human  race. 
The  welfare  of  humanity  at  large  will  be  achieved  by  the 
prosperity  and  spread  of  the  best  varieties.  After  there 
has  ended  the  predatory  stage  of  progress — after  there  has 
come  the  stage  in  which  the  competition  among  societies  is 
carried  on  w^ithout  violence,  there  will,  other  things  equal, 
be  an  increasing  predominance  of  societies  which  produce 
the  greatest  numbers  of  the  best  individuals.  Production 
and  maintenance  of  the  best  individuals  is  achieved  by 
conformity  to  the  law  that  each  shall  receive  the  good  and 
evil  results  of  his  own  nature  and  consequent  conduct ;  and 
in  the  social  state,  the  conduct  of  each  bringing  to  him  these 
results,  must  be  restrained  within  the  limits  imposed  by 
the  presence  of  others  similarly  carrying  on  actions  and 
experiencing  results.  Hence,  other  things  equal,  the 
greatest  prosperity  and  multiplication  of  efficient  indi- 
viduals will  occur  where  each  is  so  constituted  that  he  can 
fulfil  the  requirements  of  his  own  nature  without  inter- 
fering with  the  fulfilment  of  such  requirements  by  others. 

"VVTiat,  then,  becomes  the  duty  of  the  society  in  its 
corporate  capacity,  that  is,  of  the  State  ?  Assuming  that 
it  is  no  longer  called  on  to  guard  against  external  dangers, 
what  does  there  remain  which  it  is  called  on  to  do  ?  If  the 
desideratum,  alike  for  the  individuals,  for  the  society,  and 
for  the  race,  is  that  the  individuals  shall  be  such  as  can 
fulfil  their  several  lives  subject  to  the  conditions  named ; 
then  it  is  for  the  society  in  its  corporate  capacity  to  insist 


222  JUSTICE. 

that  these  conditions  shall  be  conformed  to.  Whether,  in 
the  absence  of  war^  a  government  has  or  has  not  anything 
more  to  do  than  this,  it  is  clear  it  bas  to  do  this.  And, 
by  implication,  it  is  clear  that  it  is  not  permissible  to  do 
anything  which  hinders  the  doing  of  this. 

Hence  the  question  of  limits  becomes  the  question 
whether,  beyond  maintaining  justice,  the  State  can  do  any- 
thing else  without  transgressing  justice.  On  consideration 
we  shall  find  that  it  cannot. 

§  121.  For  if  the  State  goes  beyond  fulfilment  of  its 
duty  as  above  specified,  it  must  do  this  in  one  or  both  of 
two  ways  which  severally  or  jointly  reverse  its  duty. 

Of  further  actions  it  undertakes,  one  class  comes  under 
the  definition  of  actions  which  restrain  the  freedom  of 
some  individuals  more  than  is  required  by  maintenance  of 
the  like  freedom  of  other  individuals ;  and  such  actions  are 
themselves  breaches  of  the  law  of  equal  freedom.  If  justice 
asserts  the  liberty  of  each  limited  only  by  the  like  liberties 
of  all,  then  the  imposing  of  any  further  limit  is  unjust ;  no 
matter  whether  the  power  imposing  it  be  one  man  or  a 
million  of  men.  As  we  bave  seen  throughout  this  work, 
the  general  right  formulated,  and  all  the  special  rights 
deducible  from  it,  do  not  exist  by  authority  of  the  State; 
but  the  State  exists  as  a  means  of  preserving  them.  Hence 
if,  instead  of  preserving  them,  it  trencbes  upon  them,  it 
commits  wrongs  instead  of  preventing  wrongs.  Though 
not  in  every  society,  yet  in  our  society,  the  killing  of  all 
infants  whicb  do  not  reacb  the  standard  of  goodness 
required  by  public  authority,  would  probably  be  regarded 
as  murder,  even  though  committed  by  many  individuals 
instead  of  one ;  and  though  not  in  early  times,  yet  in  our 
time,  the  tying  of  men  to  the  lands  they  were  born  on,  and 
the  forbidding  any  other  occupations  than  prescribed  ones, 
would  be  considered  as  intolerable  aggressions  on  their 
liberties.     But  if  these  larger  inroads  on  their  rights  are 


THE    LIMITS    OF    STATE-DUTIES.  223 

wrong,  then  also  are  smaller  inroads .  As  we  hold  that  a 
theft  is  a  theft  whether  the  amount  stolen  bo  a  pound  or  a 
penny,  so  we  must  hold  that  an  aggression  is  an  aggression 
whether  it  be  great  or  small. 

In  the  other  class  of  cases  the  wrong  is  general  and 
indirect,  instead  of  being  special  and  direct.  Money 
taken  from  the  citizen,  not  to  pay  the  costs  of  guarding 
from  injury  his  person,  property,  and  liberty,  but  to  pay 
the  costs  of  other  actions  to  which  he  has  given  no 
assent,  inflicts  injury  instead  of  preventing  it.  Names 
and  customs  veil  so  much  the  facts,  that  we  do  not  com- 
monly see  in  a  tax  a  diminution  of  freedom;  and  yet  it 
clearly  is  one.  The  money  taken  represents  so  much  labour 
gone  through,  and  the  product  of  that  labour  being  taken 
away,  either  leaves  the  individual  to  go  without  such  benefit 
as  was  achieved  by  it  or  else  to  go  through  more  labour.  In 
feudal  days,  when  the  subject-classes  had,  under  the  name 
of  corvees,  to  render  services  to  their  lords,  specified  in  time 
or  work,  the  partial  slavery  was  manifest  enough ;  and 
when  the  services  were  commuted  for  money,  the  relation 
remained  the  same  in  substance  though  changed  in  form. 
So  is  it  now.  Tax-payers  are  subject  to  a  State- cort'e'e, 
which  is  none  the  less  decided  because,  instead  of  giving 
their  special  kinds  of  work,  they  give  equivalent  sums;  and 
if  the  corvee  in  its  original  undisguised  form  was  a  depriva- 
tion of  freedom,  so  is  it  in  its  modern  disguised  form. 
"  Thus  much  of  your  work  shall  be  devoted,  not  to  your 
own  purposes,  but  to  our  purposes,^^  say  the  authorities  to 
the  citizens ;  and  to  whatever  extent  this  is  carried,  to  that 
extent  the  citizens  become  slaves  of  the  government. 

*'  But  they  are  slaves  for  their  own  advantage,"  will  be 
the  reply — "  and  the  things  to  be  done  with  the  money 
taken  from  them  are  things  which  will  in  one  way  or  other 
conduce  to  their  welfare.''  Yes,  that  is  the  theory— a 
theory  not  quite  in  harmony  with  the  vast  mass  of  mis- 
chievous legislation   filling  the    statute-books.     But    this 


224  JUSTICE. 

reply  is  not  to  the  purpose.  The  question  is  a  question 
of  justice ;  and  even  supposing  tliat  the  benefits  to  be 
obtained  by  these  extra  public  expenditures  were  fairly 
distributed  among  all  who  furnish  funds,  which  they  are 
not,  it  would  still  remain  true  that  they  are  at  variance  with 
the  fundamental  principle  of  an  equitable  social  order.  A 
man's  liberties  are  none  the  less  aggressed  upon  because 
those  who  coerce  him  do  so  in  the  belief  that  he  will 
be  benefited.  In  thus  imposing  by  force  their  wills  upon 
his  will,  they  are  breaking  the  law  of  equal  freedom  in 
his  person ;  and  what  the  motive  may  be  matters  not. 
Aggression  which  is  flagitious  when  committed  by  one  is 
not  sanctified  when  committed  by  a  host. 

Doubtless  most  persons  will  read  with  astonishment  this 
denial  of  unrestricted  State-power,  and  this  tacit  assertion 
that  the  State  commits  an  offence  when  it  exceeds  the 
prescribed  limits.  In  all  places  and  times  the  beliefs 
which  accompany  the  established  institutions  and  habits, 
seem  to  those  who  hold  them  uncontrovertible.  The  fury 
of  religious  persecution  has  everywhere  had  behind  it  the 
conviction  that  dissent  from  the  current  creed  implied 
deliberate  wickedness  or^ demoniacal  possession.  It  was 
thought  monstrous  to  question  the  authority  of  the  Church 
in  days  when  the  Pope  was  supreme  over  kings ;  and  at 
the  present  time,  in  parts  of  Africa,  how  monstrous  it  is 
thought  to  reject  the  local  creed  is  shown  by  the  remark 
concerning  disbelieving  Europeans — "What  fools  these 
white  men  are  ! "  So  has  it  been  politically.  As  in  Fiji 
where,  until  recently,  a  man  stood  unbound  to  be  killed, 
himself  declaring  that  '' whatever  the  king  says  must  be 
done,"  it  was  held  impossible  to  doubt  the  unbounded 
power  of  the  ruling  man — as  throughout  Europe,  while 
the  doctrine  of  the  divine  right  of  kings  was  universally 
accepted,  the  assertion  that  the  many  ought  not  to  obey 
the  one  was  regarded  by  nearly  all  as  the  worst  of  crimes — • 
as,  even  but  a  century  ago,  a  Church-and-King  mob  were 


THE    LIMITS   OF   STATK-DUT1E3.  225 

ready  to  take  tlie  life  of  a  preacher  who  publicly  dissented 
from  the  established  forms  of  government,  political  and 
ecclesiastical ;  so  is  it  in  a  measure  even  still.  One  who 
denies  the  unlimited  authority  of  the  State  is  sure  to  bo 
regarded  by  men  at  large  as  a  fool  or  a  fanatic.  Instead 
of  that  "  divinity  which  doth  hedge  a  king,"  we  have  now 
the  divinity  which  doth  hedge  a  parliament.  The  many- 
headed  government  appointed  by  multitudes  of  ignorant 
people,  which  has  replaced  the  single-headed  government 
supposed  to  be  appointed  by  heaven,  claims,  and  is  accorded, 
the  same  unrestricted  powers.  The  sacred  right  of  the 
majority,  who  are  mostly  stupid  and  ill-informed,  to  coerce 
tlie  minority,  often  more  intelligent  and  better-informed,  is 
supposed  to  extend  to  all  commands  Avhatever  which  the 
majority  may  issue ;  and  the  rectitude  of  this  arrangement 
is  considered  self-evident. 

Hence,  just  as  among  those  who  uphold  the  ''sacred 
duty  of  blood-revenge,^'  the  injunction  to  forgive  injuries 
is  unlikely  to  meet  with  much  acceptance ;  so  it  is  not  to  be 
expected  that  among  party  politicians,  eagerly  competing 
with  one  another  to  gain  votes  by  promising  State-aids  of 
countless  kinds,  any  attention  will  be  paid  to  a  doctrine  of 
State-duties  which  excludes  the  great  mass  of  their  favourite 
schemes.  But  in  face  of  all  the  contemptuous  reprobation 
coming  from  them,  it  must  still  be  asserted,  as  above,  that 
their  schemes  are  at  variance  with  the  fundamental  principle 
of  a  harmonious  social  life. 

§  122.  Here,  if  kept  strictly  within  its  limits,  this  division 
of  the  Principles  of  Ethics  should  be  brought  to  a  close. 
Having  seen  what  is  the  dictum  of  absolute  ethics  respecting 
the  duties  of  the  State,  and  having  seen  what  qualifications 
are  implied  by  that  relative  ethics  which  takes  cognizance 
of  the  requirements  generated  by  international  aggres- 
siveness— having  further  seen  that  during  the  transition 
between  the  militant  and  industrial  forms  of  social  life,  an 


226  JUSTICE. 

unduly  exalted  conception  of  State-authority  (wliich  is 
natural  and  in  large  measure  necessary)  fosters  a  multi- 
plicity of  unjust  State-actions;  there  remains,  from  an 
ethical  point  of  view,  no  more  to  be  said.  But  it  will  be 
desirable  here  to  devote  some  space  to  the  proofs  that 
these  actions  which  are  unjust  in  theory  are  also  impolitic 
in.  practice. 

The  subject  is  a  vast  one,  and  cannot  of  course  be  fully 
dealt  with  in  the  space  available.  It  will  not  be  practicable 
to  do  more  than  present  in  outline  the  various  divisions  of 
the  argument,  with  such  few  illustrations  as  are  needful  to 
indicate  their  bearings. 

We  will  first  deal  with  the  State  considered  generally  as 
an  instrumentality,  in  contrast  with  other  instrumentalities. 
We  will  examine  next  the  assumption  that  it  has  a  nature 
fitting  it  to  remedy  other  evils  than  those  entailed  by 
aggression,  external  or  internal.  We  will  then  consider  i 
the  validity  of  the  reasons  for  ascribing  to  it  the  duty  and  > 
the  power  of  achieving  positive  benefits.  And  we  will 
end  by  inquiring  whether  the  ultimate  purpose — a  higher 
development  of  human  nature — is  likely  to  be  aided  or 
hindered  by  its  extended  activities. 


Note.  Eespecting  the  conclusions  set  forth  in  the 
following  three  chapters,  it  seems  proper  to  say  that  thein 
validity  must  not  be  measured  solely  by  the  evidence  given, 
and  the  arguments  used,  in  support  of  them.  For  the  full 
vindication  of  these  conclusions,  and  for  the  multitudinous 
facts  which  justify  them,  the  reader  is  referred  to  various; 
essays  from  time  to  time  published,  and  now  re-published 
in  the  library  edition  of  my  Essays.  The  titles  of  themi 
are : — *'  Over-Legislation ;  "    "  Eepresentative  Government 


THE    LIMITS    OP    STATE-DUTIES.  227 

— ^What  is  it  Good  for  ?  "  "  State-Tamperings  witli  Money 
and  Banks  ;  "  "  The  Collective  Wisdom  ;  "  "  Political 
Fetishism  ; "  and  "  Specialized  Administration."  To  these 
may  be  added  sundry  chapters  forming  the  latter  part  of 
Social  Statics,  at  present  withdraM^n  from  circulation,  but 
selected  portions  of  which  I  hope  presently  to  re-publish. 


CHAPTER  XXVII. 

THE   LIMITS   OF   STATE -DUTIES    COXTIXUED. 

§  123.  We  saw  (in  Chap.  XXIII.)  that  at  a  later  stage  of 
evolution  a  society  may  acquire  a  nature  fundamentally 
unlike  the  nature  it  had  at  an  earler  stage;  and  we  drew  the 
corollary  that  a  theory  of  State-duties  appropriate  when  it 
had  one  nature  must  be  inappropriate  when  it  has  the  other 
nature.  Here  we  have  to  draw  a  further  corollary.  The 
implied  change  of  nature  absolves  the  State  from  various 
functions  for  which  it  was  at  first  the  best  agent ;  and 
generates  for  these  functions  other  and  better  agents. 

"While  war  was  the  business  of  life,  while  militant 
organization  was  imperative,  and  while  coercive  rule  was 
needful  for  disciplining  improvident  men  and  curbing  their 
anti-social  natures,  agencies  of  a  non-governmental  kind 
could  not  develop.  Citizens  had  neither  the  means,  nor 
the  experience,  nor  the  characters,  nor  the  ideas,  needed 
for  privately  co-operating  in  extensive  ways.  Hence  all 
large  purposes  devolved  on  the  State.  If  roads  had  to  be 
made,  if  canals  had  to  be  cut,  if  aqueducts  had  to  be  built, 
the  only  instrumentality  was  governmental  power  exercised 
over  slaves. 

But  with  decline  of  militancy  and  rise  of  industrialism 
— the  decay  of  the  system  of  status  and  growth  of  the 
system  of  contract — there  have  gradually  become  possible, 
and  have  gradually  arisen,  multitudinous  voluntary  asso- 


THE    LIMITS    OF    STATE-DUTIES.  229 

ciations  among  citizens  for  discharging  numerous  kinds  of 
functions.  This  result  lias  been  consequent  on  modifications 
of  habits,  dispositions,  and  modes  of  thought,  which  have 
been,  generation  after  generation,  produced  by  the  daily 
exchange  of  services  under  agreement,  in  place  of  the  daily 
enforcing  of  services.  One  result  is  that  there  can  now  bo 
achieved  without  governmental  power,  various  ends  which 
in  early  days  governmental  power  alone  could  achieve. 

In  discussing  the  sphere  of  State-action  we  must  take  into 
account  this  profoundly  significant  fact.  More  than  this : 
we  must  take  into  account  a  manifest  inference.  The 
changes  above  indicated  are  far  from  being  ended;  and  we 
are  justified  in  concluding  that  with  further  progress  of 
them  there  may  rightly  go  further  relinquishment  of 
functions  which  the  State  once  discharged. 

§  124.  That  such  relinquishment  of  functions  by  the  State, 
and  assumption  of  them  by  other  agencies,  constitutes  a  pro- 
gress, should  be  manifest  to  all  who  know  anything  about  the 
la^\'s  of  organization  ;  though,  unhappily,  this  truth  seems  no 
more  appreciated  by  them  than  by  those  who  began  their 
school-days  with  making  nonsense-verses  and  pass  their 
mature  years  in  pushing  forward  ad  captandiim  legislation. 
For  concerning  individual  organisms  and  social  organisms, 
nothing  is  more  certain  than  that  advance  from  lower  to 
higher,  is  marked  by  increasing  heterogeneity  of  structures 
and  increasing  subdivision  of  functions.  In  both  cases 
there  is  mutual  dependence  of  parts,  which  becomes  greater 
as  the  type  becomes  higher ;  and  while  this  implies  a  pro- 
grossing  limitation  of  one  function  to  one  part,  it  implies 
also  a  progressing  fitness  of  such  part  for  such  function. 

When,  some  fifty  years  ago,  Milne-Edwards  gave  to  this 
jirinciple  of  development  in  animals  the  name  "physiological 
division  of  labour,"  he  recognized  the  parallelism  between 
vital  economy  and  social  economy;  and  this  parallelism  haa 
been  since  growing  ever  clearer.     But  though  among  the 


230  JUSTICE. 

cultured  few,  there  is  now  some  vague  recognition  of  it; 
and  tliougli  more  especially  the  increasing  division  of 
labour  wliicL.  the  industrial  part  of  the  social  organism 
displays,  has  been  made  familiar  by  political  economists, 
and  the  advantages  of  it  duly  insisted  upon ;  there  is  little 
or  no  perception  of  the  truth  that  the  principle  holds  also 
within  the  controlling  part,  and  throughout  its  relations  to 
the  other  parts.  Even  without  the  facts  which  illustrate  it, 
we  might  be  certain  that  specialization,  with  consequent 
limitation,  normally  takes  place  in  the  regulative  structures 
of  a  society  as  in  all  its  other  structures ;  that  advantage  is 
achieved  by  such  specialization  and  limitation;  and  that 
any  reverse  change  constitutes  a  retrogression. 

The  implication  is  therefore  the  same  as  before.  All- 
embracing  State-functions  characterize  a  low  social  type  j 
and  progress  to  a  higher  social  type  is  marked  by  relin- 
quishments of  functions. 

§  125.  Most  readers  will  feel  little  faith  in  these  general 
conclusions.  It  will  be  needful  to  enforce  them  by  argu- 
ments more  readily  appreciated. 

In  §  5  I  named  the  fact  that  the  welfare  of  any  living 
body  depends  on  the  due  proportioning  of  its  several  parts 
to  their  several  duties;  and  that  the  needful  balance  of 
power  among  the  parts  is  effected  by  a  constant  competition 
for  nutriment,  and  the  flowing  to  each  of  a  quantity 
corresponding  to  its  work.  That  competition  throughout 
the  industrial  parts  of  a  society  achieves  a  kindred  balance 
in  a  kindred  way,  needs  no  proof ;  and  that  social  needs  at 
large  are  best  subserved  by  carrying  out,  wherever  possible, 
this  relation  between  effort  and  benefit,  is  manifest. 

Now  in  all  those  non-governmental  co-operations  consti- 
tuting the  greater  part  of  modern  social  life,  this  balancing 
is  spontaneously  effected.  I  need  not  dwell  on  the  principle 
of  supply  and  demand  as  displayed  throughout  our  indus- 
trial organization;  and  I  need  not  do  more  than  hint  that  this 


THE    LIMITS    OP    STATE-DUTIES.  231 

same  principle  holds  througliout  all  otlier  non-governmental 
agencies — bodies  for  voluntary  religious  teaching,  philan- 
thropic associations,  trades  unions.  Among  all  such,  activity 
and  growth,  or  quiescence  and  decay,  occur  according  as 
they  do  or  do  not  fulfil  wants  that  are  felt.  Nor  is  this  all. 
A  truth  which  cannot  be  too  much  emphasized  is  that  under 
this  stress  of  competition,  each  of  these  agencies  is  impelled 
to  perform  the  greatest  amount  of  function  in  return  for  a 
given  amount  of  nutrition.  Moreover,  competition  constantly 
impels  it  to  improve;  to  which  end  it  not  only  utilizes  the 
best  appliances  but  is  anxious  to  get  the  best  men.  The 
direct  relation  between  efficiency  and  prosperity  obliges  all 
voluntary  co-operations  to  work  at  high  pressure. 

Contrariwise,  the  compulsory  co-operations  by  which 
governmental  actions  are  effected,  instead  of  direct  relations 
between  function  and  nutrition,  show  us  highly  indirect 
relations.  Public  departments,  all  of  them  regimented  after 
the  militant  fashion,  all  supported  by  taxes  forcibly  taken, 
and  severally  responsible  to  their  heads,  mostly  appointed 
for  party  reasons,  are  not  immediately  dependent  for  their 
means  of  living  and  growing  on  those  whom  they  are 
designed  to  benefit.  There  is  no  fear  of  bankruptcy  to 
prompt  efficient  and  rapid  performance  of  duty;  there  is  no 
taking  away  of  business  by  an  opponent  who  does  work 
more  economically;  there  is  no  augmenting  of  profits  by 
adopting  improvements,  still  less  by  devising  them.  Every 
kind  of  defect  results.  As  was  lately  said  to  me  by  one 
official  concerning  another,  on  whose  remissness  I  was 
commenting — "  Oh,  he  gets  good  pay  and  doesn't  want  to 
be  bothered."  In  consequence  of  this  indirectness  of 
relation  between  benefits  yielded  and  payments  received, 
governmental  agencies  may  continue  to  exist  and  draw 
funds  for  years,  and  sometimes  for  generations,  after  they 
have  ceased  to  be  of  service;  and  when  they  are  weak, 
or  careless,  or  slow,  the  inefficiency  has  to  be  rectified  by 
pressure  exercised  through  the  governmental  machine — a 


232  JUSTICE. 

machine  so  cumbrous  aud  complex  fhat  only  great  pressure 
exercised  witli  great  patience  can  effect  tlie  needful  change. 

§  126.  Every  day's  papers  thrust  illustrations  of  these 
truths  before  the  world,  in  relation  even  to  those  essential 
functions  which  we  have  no  alternative  but  to  devolve  ou 
the  State.  The  ill-working  of  the  appliances  for  national 
protection  and  individual  protection  is  a  ceaseless  scandal. 

Army-administration  is  exemplified  by  the  retention  of  a 
royal  duke  as  commander-in-chief,  by  the  multiplicity  of 
generals  made  in  satisfaction  of  class-interests,  by  promotion 
that  is  only  in  small  measure  determined  by  merit.  It  is 
again  exemplified  by  keeping  our  own  officers  in  ignorance 
of  improvements  which  foreign  officers  are  allowed  to  see ; 
aud  by  the  repeated  leaking  out  of  secrets  through  employes 
in  the  arsenals.  And  it  is  yet  again  exemplified  by  the 
astounding  disclosures  respecting  stores — bayonets  that 
bend,  swords  that  break,  cartridges  that  jamb,  shells  of 
wrong  sizes;  so  that,  as  said  by  the  Inquiry  Commission  of 
1887  : — "  The  present  system  is  directed  to  no  definite 
object;  it  is  regulated  by  no  definite  rules;  it  makes  no 
regular  stated  provision,  either  for  the  proper  supply  and 
manufacture  of  warlike  stores,  or  for  enforcing  the  respon- 
sibility of  those  who  fail  to  make  them  j^roperly,  or  for 
ascertaining  the  fact  that  they  are  made  improperly.-" 

That  the  Navy  keeps  the  Army  in  countenance,  complaint, 
inquiry,  and  exposure,  continually  remind  us.  All  remember 
the  story  of  the  naval  evolutions  on  the  occasion  of  the 
Jubilee,  when,  without  the  stress  of  a  sea-fight,  more  than 
a  dozen  vessels,  great  and  small,  came  to  grief  in  one  way 
or  other — collisions,  explosions,  breakdowns  of  engines,  and 
Bo  forth.  And  then  there  were  the  smaller  but  equally 
significant  disastex's  which,  in  the  same  year,  attended  the 
cruise  of  2-1  torpedo  boats  down  channel  and  back  ;  during 
'vj:hich  8  of  the  24  were  more  or  less  disabled.  Vessels  that 
will  not  steer,  guns  that  burst,  ships  that  run  aground,  are 


THE    LIMITS    OP   STATE-DUTIES.  233 

frequently  reported ;  and  then,  furnisliing  a  significant 
contrast,  when  a  first-class  man-of-war,  the  Sultan,  after 
running  on  a  rock,  sinks  and  is  regarded  by  the  Admiralty 
as  lost,  it  is  raised  again  and  saved  by  a  private  company. 
To  which  add  that  the  report  concerning  Admiralty-admin- 
istration issued  in  March,  1887,  showed  that  ''such  manage- 
ment as  is  here  disclosed  would  bring  any  commercial  firm 
into  tke  Bankruptcy  Court  in  a  few  months." 

Similarly  is  it  with  the  making  and  administration  of 
laws.  So  constant  is  the  exposure  of  folly  and  failure,  that 
the  public  sense  of  them  is  seared.  In  parliamentary 
procedure  we  meet  with  the  extremes  of  utter  recklessness 
and  irrational  carefulness  :  now  a  bill  is  hurried  through 
all  its  stages  without  debate,  and  now,  after  careful  con- 
sideration has  delayed  its  enactment,  it  is  dropped  and  has 
to  pass  through  the  whole  process  again  next  session. 
While  we  see  the  amending  and  re-amending  of  clauses 
aimed  to  meet  every  contingency,  we  see  the  whole  Act 
when  passed  thrown  on  to  the  immense  chaotic  heap  of 
preceding  legislation,  making  its  confusion  worse  con- 
founded. Complaint  and  denunciation  lead  to  nothing. 
Here,  in  1867,  is  the  report  of  a  commission  formed  of 
leading  lawyers  and  statesmen — Cranworth,  Westbury, 
Cairns,  and  others — urging  the  need  for  a  digest  as  a 
preparation  for  a  code ;  and  urging  that  it  is  a  national 
duty  to  provide  citizens  with  a  means  of  knowing  the  laws 
they  have  to  conform  to.  Yet,  though  the  question  has 
been  occasionally  raised,  nothing  has  been  done — nothing, 
that  is,  by  the  State,  but  something  by  private  individuals  : 
Chitty's  Equity  Index  and  Sir  James  Stephen's  Digest  of 
the  Griminal  Law,  have  to  some  extent  taught  legislators 
what  has  been  done  by  themselves  and  their  predecessors. 
Then  there  is  the  fact,  to  the  monstrosity  of  which  custom 
blinds  us,  that  even  lawyers  do  not  know  what  the  bearings 
of  a  new  Act  are  until  judges  have  made  decisions  under  it; 
while  the  judges  themselves  exclaim  against  the  bungling 
n 


234  JUSTICE. 

legislation  ttey  Lave  to  interpret :  one  judge  saying  of  a 
clause  that  lie  "  did  not  believe  its  meaning  was  compre- 
hended either  by  the  draughtsman  who  drew  it"  or  "the 
parliament  that  adopted  it/'  and  another  declaring  that  "  it 
was  impossible  for  human  skill  to  find  words  more  calcu- 
lated to  puzzle  everybody."  As  a  natural  consequence  we 
have  every  day  appeals  and  again  appeals — decisions  being 
reversed  and  re-reversed,  and  the  poorer  litigants  being 
compelled  to  submit  by  the  wealthier  ones,  who  can  ruin 
them  by  going  from  court  to  court.  The  incredible  dis- 
proportion of  sentences,  too,  is  a  daily  scandal.  Here  a 
hungry  harvester  is  sent  to  prison  for  eating  a  pennywoi'th 
of  the  field-beans  he  was  cutting,  as  happened  at  Faversham; 
and  there  a  rich  man  who  has  committed  a  violent  assault 
has  to  pay  a  fine  which  to  him  is  trivial.  Still  more 
disgraceful  is  the  treatment  of  men  charged  with  un- 
proved offences,  and  men  who  have  been  proved  innocent: 
these  being  kept  in  prison  for  months  before  trials  which 
show  them  to  be  guiltless,  and  those,  after  bearing  long 
punishments  before  their  innocence  is  shown,  being  granted 
"free  pardons''  and  no  compensation  for  inflicted  sufferings 
and  damaged  lives. 

Even  the  smallest  daily  transaction — the  paying  of  a 
cabman  or  the  purchase  of  a  neck-tie — serves  to  remind  one 
of  official  bungling ;  for  how  can  it  be  better  shown  than 
by  the  coinage  ?  In  this  we  have  frequent  changes  where 
changes  are  undesirable.  We  have  mixed  systems  :  decimal, 
duodecimal,  and  nondescript.  Until  recently  we  had  two 
scarcely-distinguishable  pieces  for  threepence  and  four- 
pence;  we  had,  four  years  since,  the  Jubilee-sixpence  with- 
drawn because  it  simulated  a  half-sovereign  so  exactly  that  it 
needed  only  to  be  gilt  to  pass  for  one.  We  have  the 
lately-introduced  four-shilling  piece,  only  by  deliberate 
inspection  distinguishable  from  a  five-sbilling  piece.  In 
most  cases  there  lacks  the  one  needful  piece  of  information 
— the  declared   value  of  the   coin.     And  once  moi'e  there 


THK    LIMITS    OP    STATE-DUTIES.  235 

are  no  proper  adjustments  to  tlie  demands  :  everywlicre 
there  is  an  unsatisfied  cry  for  small  change. 

So  that  the  inference  which  the  general  laws  of  organ- 
ization compel  us  to  draw,  is  inductively  verified  in  respect 
i  of  the  three  all-essential  departments  of  the  State,  as  well 
as  in  a  subordinate  department,  by  evidence  which  every 
day  increases. 

§  127.  There  are  two  leading  implications  of  this  general 
truth  above  exhibited  in  the  abstract,  and  above  exemplified 
in  the  concrete. 

If  people  at  large  tolerate  the  extravagance,  the  stupidity, 
the  carelessness,  the  obstructiveness,  daily  exemplified  in 
the  military,  naval,  and  legal  administrations ;  much  more 
will  they  tolerate  them  when  exemplified  in  departments 

;  which  are  neither  so  vitally  important  nor  occupy  so  large 
a  space  in  the  public  mind.  The  vices  of  officialism  must 
exist  throughout  public  organizations  of  every  kind,  and 
may  be  expected  to  go  to  greater  extremes  where  the  neces- 
sity for  checking  them  is  less  pressing.     Not  only,  then, 

I  may  we  rationally  conclude  that  when,  beyond  its  essential 

(functions,  the  State  undertakes  non-essential  functions,  it 
will  perform  these  equally  ill,  but  we  may  rationally  con- 

iiclude  that  its  performance  of  them  will  be  still  worse. 

The    second   implication   is   that  the  ill-performance  of 

!i essential  functions  is  itself  made  more  extreme  by  the 
absorption  of  attention  and  energy  in  discharging  non- 
essential functions.  It  cannot  but  be  that  the  power  to 
conduct  a  few  businesses  is  diminished  by  the  addition  of 
many  other  businesses  to  be  conducted;  and  it  cannot  but 
be  that  when  public  criticism  is  directed  to  shortcomings 
of  many  kinds  it  must  be  less  efficient  than  when  directed 
to  shortcomings  of  few  kinds.  If,  instead  of  being 
almost  wholly  occupied  with  other  things,  Parliament  were 
occupied  almost  wholly  with  the  administrations  for  external 
protection  and  internal  protection,  no  one  will  dare  to  deny 


236  JUSTICE. 

that  these  would  be  more  efficient  than  now ;  and  no  one 
will  dare  to  assert  that,  if  discussions  on  the  platform  and 
in  the  press  were  almost  wholly  about  these  administrations 
instead  of  being  almost  wholly  about  other  things,  the 
public  would  tolerate  such  inefficiency  of  thetn  as  it  now  does. 
Thus  whether  we  wish  to  avoid  the  multiplication  of  ill- 
performed  functions,  or  whether  we  wish  to  have  the 
essential  functions  better  performed,  the  requirement  is  the 
same — limitation.  Specialization  of  functions  directly 
improves  the  discharge  of  each  function  by  adjusting 
the  organ  to  it,  and  indirectly  improves  the  discharge  of 
other  functions  by  permitting  each  to  acquire  an  appro- 
priate organ. 

§  128.  The  foregoing  reasons  for  concluding  that  in  the 
administration  of  social  affairs  the  just  is  also  the  politic,  will 
weigh  but  little  with  the  majority.  The  beliefs  in  natural 
law  and  the  universality  of  causation  are  not  very  strong 
even  in  the  scientific  world  when  vital  phenomena  are  in 
question;  and  they  are  very  feeble  in  the  outer  world. 
Only  such  of  the  above  arguments  as  are  based  on  facts 
daily  published  are  likely  to  tell ;  and  the  adequacy  of  even 
these  will  be  denied  by  most. 

It  will,  therefore,  be  needful  to  reinforce  them  by  others 
drawn  from  evidences  directly  relevant.  Let  us  devote  a 
chapter  to  these. 


CHAPTER  XXYIII. 

THE  LIMITS  OF  STATE-DUTIES  CONTINUED. 

§  129.  "In  simple  matters  direct  perception  cannot  bo 
trusted :  to  insure  trustworthy  conclusions  we  must  use 
some  mode  of  measurement  bj  wliich  the  imperfections 
of  the  senses  may  be  corrected.  Contrariwise,  in  complex 
matters  unaided  contemplation  suffices  :  we  can  adequately 
sum  up  and  balance  the  evidences  without  reference  to  any 
general  truth." 

Does  an}  on3  smile  at  this  absurd  proposition  ?  Why 
should  he  do  so  ?  The  probabilities  are  ten  to  one  that, 
under  a  disguised  form,  this  proposition  forms  part  of  his 
tacitly-accepted  creed.  If  he  hears  of  an  artizan  who 
pooh-poohs  thermometers,  and  says  he  can  tell  better  by 
his  hand  what  is  the  right  temperature  for  the  liquid  he 
uses,  the  reader,  knowing  that  the  sensation  of  heat  or 
cold  which  anything  yields  varies  greatly  according  to  the 
temperature  of  the  hand,  sees  how  absurd  is  this  self- 
confidence  resulting  from  want  of  knowledge.  But  he  sees 
no  absurdity  in  the  attempt  to  reach  without  any  guiding 
principle  a  right  conclusion  respecting  the  consequences  of 
some  action  affecting  in  multitudinous  ways  millions  of 
people :  here  there  needs  no  kind  of  meter  by  which  to 
test  the  correctness  of  direct  impressions.  If,  for  instance, 
the  question  is  whether  he  shall  advocate  the  system  of 
payment  by   results   in    State-aided  schools,  he  thinks  it 


238  JUSTICE. 

obvious  that  the  stimulus  given  by  it  to  teacliers  cannot 
fail  to  be  beneficial  to  pupils.  It  does  not  occur  to  him 
that  perhaps  the  induced  pressure  will  be  too  great ;  that 
perhaps  it  will  foster  a  mechanical  receptivity;  that  mere 
cram  may  end  in  ultimate  aversion  to  learning ;  that  there 
may  be  prompted  special  attention  to  clever  pupils  whose 
success  will  profit  the  teacher,  and  consequent  neglect  of 
dull  ones;  that  a  system  which  values  knowledge  for 
gaining  money-grants,  and  not  for  its  own  sake,  is  unlikely 
to  produce  healthy  intelligence;  and  that  even  the  teachers 
under  such  a  system  are  likely  to  become  mere  machiues. 
Seeing,  as  he  thinks  quite  clearly,  the  immediate  results, 
and  either  not  perceiving  at  all  the  remote  results  or 
making  light  of  them,  he  has  no  doubt  that  the  plan  will 
be  a  good  one.  And  then  when,  after  some  20  years 
the  effects  of  the  plan  are  found  to  be  so  injurious  that  it  is 
abandoned,  after  having  damaged  the  healths  of  millions 
of  children  and  inflicted  an  immeasurable  amount  of  phy- 
sical and  mental  pain,  he  is  not  in  the  least  the  wiser  for 
his  disastrous  misjudgment,  but  is  ready  next  day  to  decide 
about  some  newly  proposed  scheme  in  the  same  way — by 
simple  inspection  and  balancing  probabilities.  That  is,  as 
above  said,  though  the  aid  of  general  principles  is  thought 
needful  in  simple  matters,  it  is  thought  not  needful  in  the 
most  complex  matters. 

And  yet  a  minute's  thought  should  make  it  clear  to 
every  one  not  only  that  these  unguided  judgments  are  very 
likely  to  be  wrong,  but  also  that  there  must  exist  some 
guidance  by  which  correct  judgments  may  be  reached. 
For  what  can  be  more  nonsensical  than  the  belief  that 
there  is  no  natural  causation  in  social  affairs  ?  And 
how  can  anyone  evade  the  charge  of  folly  who,  admitting 
that  there  must  be  natural  causation,  devises  laws  which 
take  no  account  of  it  ?  As  argued  in  a  preceding  chapter, 
if  there  is  no  causation  then  one  law  is  as  good  as  another, 
and  law-making  ridiculous.     If  one  law  is  not  as  good  as 


THE    LIMITS    OP   STATE-DUTIES.  239 

another,  it  must  be  that  on  men  socially  aggregated  one 
law  will  operate  more  beneficially  than  another;  and  its 
more  beneficial  operation  implies  some  adaptation  to  the 
natures  of  the  men  and  their  modes  of  co-operation. 
Concerning  these  there  must  exist  some  general  truths, 
some  deepest  uniformities ;  and  the  ultimate  effect  of  any 
legislation  must  depend  on  its  recognition  of  such  uniformi- 
ties and  its  subordination  to  them.  How,  then,  can  there  be 
anything  more  senseless  than  to  proceed  before  inquiring 
what  they  are  ? 

§  130.  Pursuit  of  happiness  without  regard  to  the  condi- 
tions by  fulfilment  of  which  happiness  is  to  be  achieved,  is 
foolish  socially  as  well  as  individually — nay,  indeed,  more 
foolish ;  since  the  evils  of  disregarding  the  conditions  are 
not  unfrequently  evaded  by  the  individual,  but,  in  conse- 
quence of  the  averaging  of  effects  among  many  individuals, 
cannot  be  evaded  by  the  society. 

Estimating  the  probable  results  of  each,  act  apart  from 
any  general  sanction  other  than  the  pursuit  of  happiness, 
is  the  metkod  pursued  by  every  criminal.  He  thinks  the 
chances  are  in  favour  of  gaining  pleasures  and  escaping 
pains.  Ignoring  those  considerations  of  equity  which 
should  restrain  him,  he  contemplates  the  proximate  results 
and  not  the  ultimate  results ;  and,  in  respect  of  the  prox- 
imate results,  he  is  occasionally  right :  he  has  the  gratifi- 
cations which  his  ill-gotten  gains  bring  and  does  not  suffer 
the  punishment.  But  in  the  long  run  it  turns  out  that  the 
evils  are  greater  than  the  benefits ;  partly  because  he  does 
not  always  avoid  the  penalties,  and  partly  because  the 
kind  of  nature  fostered  by  his  actions  is  incapable  of  the 
higher  kinds  of  happiness. 

The  policy  thus  pursued  with  egoistic  ends  by  the  law- 
breaker is  pursued  with  altruistic  ends  by  the  expediency 
politician.  He,  too,  not  for  his  own  good,  but,  as  he 
thinks,    for   the   good   of    others,   makes   calculations   of 


240  JUSTICE. 

probable  pleasures  and  pains ;  and,  ignorlag  tlie  dictates 
of  pure  equity,  adopts  sucb  metliods  as  he  thinks  will 
achieve  the  one  and  avoid  the  other.  If  it  is  a  question  of 
providing  books  and  newspapers  in  so-called  free  libraries, 
he  contemplates  results  which  he  makes  no  doubt  will  bo 
beneficial ;  and  practically  ignores  the  inquiry  whether  it  is 
just  to  take  by  force  the  money  of  A,  B,  and  C,  to  pay  for 
the  gratifications  of  D,  E,  and  F.  Should  his  aim  be  the 
repression  of  drunkenness  and  its  evils,  he  thinks  exclu- 
sively of  these  ends,  and,  determined  to  impose  his  own 
beliefs  on  others,  tries  to  restrict  men's  freedom  of  exchange 
and  to  abolish  businesses  in  which  capital  has  been  invested 
with  legal  and  social  assent.  Thus,  as  above  said,  the 
altruistic  aggressor,  like  the  egoistic  aggressor,  disregards 
all  other  guidance  than  that  of  estimated  proximate  results 
— is  not  restrained  by  the  thought  that  his  acts  break  the 
first  principle  of  harmonious  social  life. 

Clearly  this  empirical  utilitarianism,  which  makes  happi- 
ness the  immediate  aim,  stands  in  contrast  with  the 
rational  utilitarianism,  which  aims  at  fulfilment  of  the 
conditions  to  happiness. 

§  131.  The  upholders  of  political  empiricism  cannot 
object  if  we  bring  their  own  method  to  the  empirical  test. 
If,  ignoring  abstract  principles,  we  are  to  be  guided  by 
results,  either  as  calculated  beforehand  or  as  ascertained  by 
experience,  then,  cleai'ly,  we  cannot  do  better  than  judge  in 
like  manner  of  the  empirical  method  itself.     Let  us  do  this. 

In  a  discussion  on  socialistic  legislation  which  took 
place  in  the  House  of  Lords  on  May  19,  1890,  our  Prime 
Minister  said — 

"  We  no  more  ask  what  is  the  derivation  or  philosophical  extraction  of  a 
proposal  before  we  adopt  it  than  a  wise  man  would  ask  the  character  of  a 
footman's  grandfather  before  engaging  the  footman." 

After  thus  ridiculing  the  supposition  that  there  are  any  : 
general  laws  of  social  life  to  which  legislation  should  con- 


THE    LIMITS   OP   STATE-DUTIES.  241 

forrrij  he  went  on  to  say — "  we  ought  first  to  discuss  every 
subject  on  its  own  merits/'  And  Lord  Salisbury's  method 
thus  distinctly  avowed,  is  the  method  universally  followed 
by  politicians  who  call  themselves  practical  and  sneer  at 
"  abstract  principles/' 

But  unhappily  for  them  their  method  is  the  method  which 
has  been  followed  by  those  legislators  who^  throughout 
past  thousands  of  years,  have  increased  human  miseries  in 
multitudinous  ways  and  immeasureable  degrees  by  mischie- 
vous laws.  Regard  for  "  the  merits  of  the  case  "  guided 
Diocletian  when  he  fixed  the  prices  of  articles  and  wages  of 
workers,  and  similarly  guided  rulers  of  all  European  nations 
who,  century  after  century,  in  innumerable  cases,  have 
decided  how  much  commodity  shall  be  given  for  so  much 
money,  and  in  our  own  country  guided  those  who,  after 
the  Black  Death,  framed  the  Statute  of  Labourers,  and 
presently  caused  the  peasant  revolt.  The  countless  Acts 
which,  here  and  abroad,  prescribed  qualities  and  modes  of 
manufacture,  and  appointed  searchers  to  see  that  things 
were  made  as  directed,  were  similarly  prompted  by  considera- 
tion of  "  the  merits  of  the  case  "  :  evils  existed  which  it 
was  obviously  needful  to  prevent.  Doubtless,  too,  the 
orders  to  farmers  respecting  the  proportions  of  their  arable 
and  pasture  lands,  the  times  for  shearing  sheep,  the  number 
of  horses  to  a  plough,  as  well  as  those  which  insisted  on 
certain  crops  and  prohibited  others,  had  "  the  merits  of  the 
case  "  in  view.  Similarly  was  it  with  the  bounties  on  the 
exports  of  some  commodities  and  the  restrictions  on  the 
imports  of  others ;  and  similarly  was  it  with  the  penalties 
on  forestallers,  and  the  treatment  of  usury  as  a  crime. 
Each  one  of  those  multitudinous  regulations  enforced  by 
swarms  of  oflBcials,  which  in  France  nearly  strangled  industry, 
and  was  a  part-cause  of  the  French  revolution,  seemed  to 
those  who  established  it,  a  regulation  which  "  the  merits 
of  the  case "  called  for ;  and  no  less  did  there  seem  to  be 
called  for  the  numberless  sumptuary  laws  which,  generation 


242  JUSTICE. 

after  generation,  kings  and  their  ministers  tried  to  enforce. 
Out  of  the  14,000  odd  Acts  which,  in  our  own  country,  have 
"been  repealed,  from  the  date  of  the  Statute  of  Merton  down 
to  1872 — some  because  of  consolidations,  some  because  they 
proved  futile,  some  because  they  were  obsolete — how  many 
have  been  repealed  because  they  were  mischievous  ?  Shall 
we  say  one-half  ?  Shall  we  say  one-fourth  ?  Shall  we  say 
less  than  one-fourth  ?  Suppose  that  only  3000  of  these  Acts 
were  abolished  after  proved  injuries  had  been  caused,  which 
is  a  low  estimate.  What  shall  we  say  of  these  3000  Acts 
which  have  been  hindering  human  happiness  and  increasing 
human  misery;  now  for  years,  now  for  generations,  now 
for  centuries  ? 

See  then  the  verdict.  If  we  are  to  be  led  by  observation 
and  experience,  what  do  observation  and  experience  say 
respecting  this  method  of  guidance  ?  Do  they  not  show 
beyond  all  possibility  of  denial  that  it  has  proved  a  gigantic 
failure  ?  "  No  :"  may  perhaps  be  the  reply — ''  You  forget 
that  though  numerous  laws  have  been  repealed  after  doing 
mischief,  numerous  others  have  not  been  repealed  but  have 
proved  beneficial."  Very  true ;  but  this  reply  is  no  less 
unfortunate  than  the  original  allegation.  For  which  are  the 
successful  laws  ?  They  are  the  laws  which  conform  to 
those  fundamental  principles  which  practical  politicians 
pooh-pooh.  They  are  the  laws  countenanced  by  that  social 
philosophy  of  which  Lord  Salisbury  speaks  so  contemptu- 
ously. They  are  the  laws  which  recognize  and  enforce  the 
various  corollaries  from  the  formula  of  justice.  For, 
as  we  have  seen  in  a  number  of  preceding  chapters, 
social  evolution  has  been  accompanied  by  the  progressive 
establishment  of  these  ethically-enjoined  laws.  So 
that  the  evidence  yields  a  double  condemnation  of  the 
method  of  empirical  utilitarianism.  Facts  conclusively 
prove  the  failure  of  that  method  and  the  success  of  the 
opposite  method. 

But  now  observe  that  neither  Lord    Salisbury  nor  any 


THE    LIMITS    OF    STATE-DUTIES.  243 

adherent  of  the  same  political  creed,  pursues  with  consistency 
this  method  of  judging  bv  "  the  merits  of  the  case/' 
Contrariwise,  throughout  by  far  the  most  important  classes 
of  cases  they  pursue  the  method  they  ridicule.  Bring  them 
to  the  test,  and  they  will  emphatically  repudiate  guidance 
by  "  the  merits  of  the  case,"  when  the  case  is  one  in  which 
the  issues  are  simple  and  clear. 

In  explanation  of  the  frequent  escapes  of  thieves  in  public 
thoroughfares,  a  letter  to  one  of  the  daily  papers  narrated 
hosv,  after  witnessing  a  theft,  the  writer  asked  a  man  who 
was  passed  by  the  thief  when  running  away,  why  he  did 
not  stop  him.  The  reply  was — "  I  was  not  going  to  stop 
the  poor  fellow.  I  expect  the  things  he  stole  would  do  him 
more  good  than  the  man  he  stole  them  from."  Here, 
consideration  of  '^  the  merits  of  the  case  "  was  the  avowed 
way  of  judging :  the  relative  degrees  of  happiness  of  the 
thief  and  the  person  robbed  were  estimated  and  the  decision 
justified  the  theft.  "  But  the  rights  of  property  must  be 
maintained,'^  Lord  Salisbury  would  reply.  "  Society  would 
dissolve  if  men  were  allowed  to  take  other  men's  goods  on 
the  plea  that  they  had  more  need  of  them  than  the  owners." 
Just  so.  But  this  is  not  judging  by  "  the  merits  of  the 
case  " ;  it  is  judging  by  conformity  to  a  general  principle. 
That  philosophy  at  which  Lord  Salisbury  sneers,  shows 
that  social  co-operation  can  be  effectively  and  harmoniously 
carried  on,  only  if  the  relations  between  efforts  and  benefits 
are  maintained  intact.  And,  as  we  have  seen,  it  is  the  same 
with  all  those  laws  the  enforcement  of  which  constitutes 
the  administration  of  justice,  and  which  it  is  part  of  Lord 
Salisbury's  essential  business  to  uphold  :  all  of  them  are 
embodied  corollaries  from  the  philosophy  he  scorns. 

The  essential  difference  is  that  though  the  lessons  of 
thousands  of  years  show  that  society  improves  in  proportion 
as  there  is  better  and  better  conformity  to  these  corolhiries; 
and  though  it  is  to  be  inferred  that  it  will  be  best  to  conform 
to  them  in  each  new  case  which  arises ;  Lord  Salisbury  thinks 


244  JUSTICE. 

that  nonconformity  to  them  is  proper  if  a  majority  decides 
that  "  the  merits  of  the  case  "  demand  it. 


§  132.  That  anyone  who  has  before  him  the  facts  daily 
set  forth  in  newspapers^  should  suppose  that  when  measures 
are  taken  to  meet  "  the  merits  of  the  case,"  the  consequences 
can  be  shut  up  within  the  limits  of  the  case,  is  astonishing. 
That,  after  seeing  how  a  change  set  up  in  some  part  of  a 
society  initiates  other  changes  unforeseen,  and  these  again 
others,  anyone  should  think  he  is  going  to  produce  by  Act 
of  Parliament  certain  effects  intended  and  no  unintended 
effects,  shows  how  possible  it  is  to  go  on  reading  day  by 
day  without  getting  wiser.  In  any  aggregate  formed  of 
mutually-dependent  parts,  there  comes  into  play  what  I 
have  elsewhere  described  as  fructifying  causation.  The 
effects  of  any  cause  become  themselves  causes,  often  more 
important  than  their  parent ;  and  their  effects,  again,  become 
other  causes.  What  happened  when  a  great  rise  in  the 
price  of  coals  occurred  some  years  ago  ?  The  expenditure 
of  every  household  was  affected,  and  the  poor  were  especially 
pinched.  Every  factory  was  taxed,  and  either  the  wages 
lowered  or  the  price  of  the  commodity  niised.  The  smelting 
of  iron  became  more  expensive,  and  the  cost  of  all  those 
things,  such  as  railways  and  engines,  into  which  iron  enters 
largely,  was  increased.  The  ability  to  compete  with  various 
classes  of  foreign  manufactures  was  diminished ;  fewer 
vessels  were  chartered  for  carrying  products  abroad;  and 
the  ship-building  trade  flagged  with  all  the  dependent 
trades.  Similarly  throughout  in  directions  too  numerous  to 
follow.  See,  again,  what  has  resulted  from  the  late  dock- 
strike — or  rather,  from  the  ill-judged  sympathy  which, 
guided  by  "  the  merits  of  the  case,"  led  public  and  police 
to  tolerate  the  violence  employed  by  dockers  to  achieve 
their  ends.  Successful  use  in  this  case  of  assaulting,  \ 
bullying,  and  boycotting,  prompted  elsewhere  strikes  en- 
torccd  by  like  means — at   Southampton,  Tilbury,  Glasgow, 


THE    LIMITS    OP    STATE-DUTIES.  245 

Nottiiiglianij  &c.  Other  classes  followed  tlie  lead — painters, 
leather-workers,  cabinet-makers,  scale-makers,  bakers,  car- 
penters, printers,  sandwich-men,  &c.  And  there  were 
prompted  like  movements,  still  more  unscrupulous,  in 
Australia  and  America.  Then,  as  secondary  results,  came 
the  stoppages  and  perturbations  of  businesses,  and  through 
them  of  connected  businesses,  with  consequent  decrease  of 
employment.  Among  tertiary  results  we  have  encourage- 
ment of  the  delusion  that  it  only  requires  union  for  workers 
to  get  what  terms  they  please,  prompting  suicidal  demands. 
And,  among  still  remoter  results,  we  have  the  urging  on 
of  meddling  legislation  and  the  fostering  of  socialistic  ideas. 

The  indirect  effects,  multiplying  and  again  multiplying, 
are  often  in  the  long  run  the  reverse  of  those  counted  on. 
Past  and  present  alike  supply  instances.  Among  those 
from  the  past  may  be  named  the  Act  of  8th  Elizabeth, 
which,  to  protect  the  inhabitants  of  Shrewsbury  against 
strangers,  forbade  all  save  freemen  to  trade  in  Welsh  cottons, 
and  which,  six  years  afterwards,  the  Shrewsbury  people 
begged  should  be  repealed,  because  "  of  the  impoverishing 
and  undoing  of  the  poor  artificers  and  others,  at  whose  suit 
the  said  Act  was  procured  "  :  an  experience  parallelled  in 
later  days  by  that  of  the  Spitalfields  weavers.  Then  of 
striking  examples  which  present  times  furnish,  y^e  have  the 
results  of  certain  laws  in  the  Western  States  of  America. 
In  his  message  to  the  Colorado  Legislature,  January  8, 
1885,  Governor  Grant  says — "These  laws  were  designed 
to  exterminate  the  hawks,  wolves,  and  loco-weeds  .  .  .  the 
hawks  and  wolves  have  steadily  increased  under  the 
auspices  of  these  bounty  laws "  ;  that  is,  as  measured  by 
the  amount  paid.  Kindred  results  have  been  experienced 
in  India, 

From  the  times  when  vagrants  swarmed  round  monasteries 
to  the  Old  Poor-Law  days  when  many  parishes  were  nearly 
swamped  by  paupers,  experience  has  continually  shown 
that  measures  guided  by  the  apparent  "  merits  of  the  case," 


24:6  JUSTICE. 

have  done  exactly  the  reverse  of  that  which  was  proposed  to 
be  done — have  increased  distress  instead  of  diminishing  it. 
And  recent  facts  have  continued  to  illustrate  the  same  thing. 
The  Chairman  of  the  Bradfield  Union,  writing  to  the 
Spectator  of  April  19th,  1890,  points  out  that  seventeen 
years'  administration  led  by  principle  instead  of  impulse, 
had  reduced  the  indoor  paupers  from  259  to  100,  and 
the  out-door  paupers  from  999  to  42  :  the  conviction  with 
which  he  ends  his  letter  being  that  "the  majority  of  pau- 
pers are  created  by  out-relief."  And  this  warning  against 
being  guided  by  the  seeming  necessities,  has  been  since 
emphasized  by  Mr.  Arnold  AVhite,  writing  from  Tennyson 
Settlement,  Cape  Colony,  to  the  Spectator  for  January  10, 
1891,  in  which  be  says: — "Any  colonising  scheme  that 
does  not  distinctly  include  death  to  the  wilfully  idle  if  they 
choose  to  die,  is  predestined  to  failure.  .  .  .  the  lesson 
has  been  burned  into  me  by  long  and  bitter  years  of  hard- 
earned  experience.^'  Which  is  to  say  that  if,  in  respect  of 
charity,  we  let  ourselves  be  swayed  by  the  apparent 
"  merits  of  the  case,"  we  shall  eventually  exacerbate  the 
evils  instead  of  curing  them. 

The  judgments  of  the  legislator  who  derides  philosophy, 
and  thinks  it  needful  only  to  look  at  the  facts  before  him, 
are  equally  respectable  with  those  of  the  labourer  who 
joins  his  fellows  in  vociferous  advocacy  of  some  public 
undertaking,  for  the  reason  that  it  will  give  employment — 
thus  looking,  as  he  does,  at  "  the  merits  of  the  case "  as 
directly  to  be  anticipated^  and  thinking  nothing  of  the 
remoter  consequences  :  not  asking  what  will  be  the  effect 
of  expending  capital  in  doing  something  that  will  not 
bring  adequate  returns;  not  asking  what  undertakings, 
probably  more  remunerative  and  therefore  more  useful,  the 
capital  would  have  been  otherwise  devoted  to ;  not  asking 
what  other  traders  and  artizans  and  labourers  would  then 
have  had  employment.  For  though  the  legislator  may 
contemplate    effects    somewhat    more    remote,   yet    he  is 


THE    LIMITS    OP   STATE-DUTIES.  247 

practically  as  far  as  the  labourer  from  conceiving  tlio 
ultimate  waves  of  change,  reverberating  and  re-reverberating 
throughout  society. 

§  133.  Which  is  the  more  misleading,  belief  without 
evidence,  or  refusal  to  believe  in  presence  of  overwhelming 
evidence  ?  If  there  is  an  irrational  faith  which  persists 
without  any  facts  to  support  it,  there  is  an  irrational  lack 
of  faith  which  persists  spite  of  the  accumulation  of  facts 
which  should  produce  it ;  and  we  may  doubt  whether  the 
last  does  not  lead  to  worse  results  than  the  first. 

The  average  legislator,  equally  with  the  average  citizen, 
has  no  faith  whatever  in  the  beneficent  working  of  social 
forces,  notwithstanding  the  almost  infinite  illustrations  of 
this  beneficent  working.  He  persists  in  thinking  of  a 
society  as  a  manufacture  and  not  as  a  growth :  blind  to  the 
fact  that  the  vast  and  complex  organization  by  which  its 
life  is  carried  on,  has  resulted  from  the  spontaneous  co- 
operations of  men  pursuing  their  private  ends.  Though, 
when  he  asks  how  the  surface  of  the  Earth  has  been 
cleared  and  made  fertile,  how  towns  have  grown  up,  how 
manufactures  of  all  kinds  have  arisen,  how  the  arts  have 
been  developed,  how  knowledge  has  been  accumulated, 
how  literature  has  been  produced,  he  is  forced  to  recognize 
the  fact  that  none  of  these  are  of  governmental  origin,  but 
have  many  of  them  suffered  from  governmental  obstruction ; 
yet,  ignoring  all  this,  he  assumes  that  if  a  good  is  to  bo 
achieved  or  an  evil  prevented.  Parliament  must  be  invoked. 
He  has  unlimited  faith  in  the  agency  which  has  achieved 
multitudinous  failures,  and  has  no  faith  in  the  agency 
which  has  achieved  multitudinous  successes. 

Of  the  various  feelings  which  move  men  to  action,  each 
class  has  its  part  in  producing  social  structures  and 
functions.  There  are  first  the  egoistic  feelings,  most 
powerful  and  most  active,  the  effects  of  which,  as  develop- 
ing the  arrangements  for  production  and  distribution,  have 


248  JUSTICE. 

been  above  adverted  to,  and  wliicli,  whenever  there  is  a 
new  sphere  to  be  profitably  occupied,  are  quick  to  cause 
new  growths.  From  the  cutting  of  a  Suez  Canal  and  the 
building  of  a  Forth  Bridge,  to  the  insurance  of  ships, 
houses,  lives,  crops,  windows,  the  exploration  of  unknown 
regions,  the  conducting  of  travellers'  excursions,  down  to 
automatic  supjDly-boxes  at  railway- stations  and  the  loan  of 
opera-glasses  at  theatres,  private  enterprise  is  ubiquitous 
and  infinitely  varied  in  form;  and  when  repi-essed  by  State-' 
agency  in  one  direction  buds  out  in  another.  Reminding 
us  of  the  way  in  which,  in  Charles  II's  time,  there  was 
commenced  in  London  a  local  penny-post,  which  was 
suppressed  by  the  government,  we  have,  in  the  Boy 
Messengers'  Company  and  its  attempted  suppression,  illus- 
trations of  the  efficiency  of  private  enterprise  and  the 
obstructiveness  of  officialism.  And  then,  if  there  needs  to  add 
a  case  showing  the  superiority  of  spontaneously-formed 
agencies  we  have  it  in  the  American  Express  Companies, 
of  which  one  has  7000  agencies,  has  its  own  express  trains, 
delivers  25,000,000  parcels  annually,  is  employed  by  the 
government,  has  a  money-order  system  which  is  replacing 
that  of  the  Post  Office,  and  has  now  extended  its  business  to 
Europe,  India,  Africa,  South  America,  and  Polynesia. 

Beyond  those  egoistic  feelings  by  the  combined  forces  of 
which  the  sustaining  organization  of  every  society  has 
been  developed,  there  are  in  men  the  ego-altruistic  and 
altruistic  feelings — the  love  of  approbation  and  the  sympathy 
— ^which  prompt  them  to  various  other  single  and  combined 
actions,  and  generate  various  other  institutions.  It  is 
needless  to  go  back  into  the  past  to  exemplify  the  operation 
of  these  in  the  endowments  for  charitable  and  educational 
purposes.  The  present  day  furnishes  ample  evidence  of 
their  potency.  Here,  and  still  more  in  America,  we  have 
vast  sums  left  for  founding  colleges,  and,  in  more  numerous 
cases,  sums  for  endowing  professorial  chairs  and  scholar- 
ships; we  have  gifts  of  immense  sums   to  build  and  fill 


THE    LIMITS    OP   STATE-DDTIE3.  249 

public  libraries;  we  liave  parks  and  gardens  given  to 
towns  by  private  individuals ;  we  bave  museums  bequeathed 
to  the  nation.  In  The  Standard  for  April  1 1,  1890,  is 
given  an  account  showing  that  the  bequests  to  hospitals, 
asylums, missions, societies, for  1889  amounted to£l, 080,000; 
and  that  for  the  first  quarter  of  1890  they  amounted  to 
£300,000.  Then,  in  The  Ninetepnih  Century,  for  January, 
1890,  Mr.  Huish  has  pointed  out  that  during  the  last  few 
years,  the  gifts  of  private  individuals  for  the  support  of 
art,  have  been  respectively,  for  buildings  £347,500,  and 
in  pictures  or  money  £559,000 ;  to  which  may  be  added 
the  more  recent  donation  of  £80,000  for  a  gallery  of 
British  Art. 

Nor  must  we  forget  the  daily  activities  of  multitudinous 
philanthropic  people  in  urging  one  or  other  movement  for 
the  benefit  of  fellow-citizens.  Countless  societies,  with  an 
enormous  aggregate  revenue,  are  formed  for  unselfish 
purposes :  all  good  in  design  if  not  in  result.  And  the 
motives,  largely  if  not  wholly  altruistic,  which  prompt  the 
establishment  and  working  of  these,  far  from  showing  any 
decrease  of  strength,  become  continually  stronger. 

Surely,  then,  if  these  forces  have  already  done  so  much 
and  are  continually  doing  more,  their  future  efiiciency  may 
be  counted  upon.  And  it  may  be  reasonably  inferred  that 
they  will  do  many  things  which  we  do  not  yefc  see  how 
to  do. 

§  134.  So  that  even  if  we  disregard  ethical  restraints, 
and  even  if  we  ignore  the  inferences  to  be  drawn  from  that 
progressing  specialization  which  societies  show  us,  we  still 
find  strong  reasons  for  holding  that  State-functions  should 
be  restricted  rather  than  extended. 

Extension  of  them  in  pursuit  of  this  or  that  promised 
benefit,  has  all  along  proved  disastrous.  The  histories  of 
all  nations  are  alike  in  exhibiting  the  enormous  evils  that 
have  been  produced  by  legislation  guided  merely  by  "  tho 


250  JUSTICE. 

merits  of  tlie  case;"  wLile  they  unite  in  proving  tlie  success 
of  legislation  wliicli  has  been  guided  by  considerations 
of  equity. 

Evidence  thrust  before  us  every  morning  shows  through- 
out the  body  politic  a  fructifying  causation  so  involved 
that  not  even  the  highest  intelligence  can  anticipate  the 
aggregate  effects.  The  practical  politician  so-called^  who 
thinks  that  the  influences  of  his  measure  are  to  be  shut  up 
within  the  limits  of  the  field  he  contemplates,  is  one  of  the 
wildest  of  theorists. 

And  then,  while  his  faith  in  the  method  of  achieving 
artificially  this  or  that  end,  is  continually  discredited  by 
failures  to  work  the  effects  intended  and  by  working  unin- 
tended effects,  he  shows  no  faith  in  those  natural  forces 
which  in  the  past  have  done  much,  are  at  present  doing 
more,  and  in  the  future  may  be  expected  to  do  most. 


CHAPTEE  XXIX. 

THE  LIMITS  OF  STATE-DUTIES  CONCLUDED. 

§  135.  Of  tlie  many  reasons  for  restricting  tlie  range  of 
governmental  actions,  the  strongest  remains  to  be  named. 
Tlie  end  whicli  tlie  statesman  should  keep  in  view  as  higher 
than  all  other  ends,  is  the  formation  of  character.  And  if 
there  is  entertained  a  right  conception  of  the  character 
which  should  be  formed,  and  of  the  means  by  which  it  may 
be  formed,  the  exclusion  of  multiplied  State-agencies  is 
necessarily  implied. 

"  How  so  ?  "  will  doubtless  be  the  exclamation  of  many. 
"  Is  not  the  formation  of  character  the  end  to  which  much 
of  the  legislation  we  advocate  is  directed  ?  Do  we  not 
contend  that  an  all-important  part  of  the  State's  business 
is  the  making  of  good  citizens  ?  and  are  not  our  school- 
systems,  our  free-libraries,  our  sanitary  arrangements,  our 
gymnasia,  &c.,  devised  with  the  view  of  improving 
their  natures  ?  " 

To  this  interrogative  reply,  uttered  with  an  air  of 
astonishment  and  an  implied  conviction  that  nothing 
remains  to  be  said,  the  answer  is  that  everything  depends 
on  the  goodness  of  the  ideal  entertained  and  the  appropriate- 
ness of  the  appliances  for  realizing  itj  and  that  both  of 
them  are  radically  wrong. 

These    paragraphs    sufficiently   indicate   th.e   antagonist 


252  JUSTICE. 

views  to  be  here   discussed.     Let  ns   now   enter   on   tlie 
discussion  of  them  systematically. 

§  136.  Upwards  from  hordes  of  savages  to  civilized 
nations,  countless  examples  show  that  to  make  an  efficient 
warrior  preparation  is  needed.  Practice  in  the  use  of  weapons 
begins  in  boyhood ;  and  throughout  youth  the  ambition  is 
to  be  a  good  marksman  with  the  bow  and  arrow,  to  throw 
the  javelin  or  the  boomerang  with  force  and  precision,  and 
to  become  an  adept  in  defence  as  well  as  in  attack.  At  the 
same  time  speed  and  agility  are  effectually  cultivated,  and 
there  are  trials  of  strength.  More  relevant  still  to  the  end 
in  view  comes  the  discipline  in  endurance;  sometimes  going 
to  the  extent  of  submission  to  torture.  In  brief,  each  male 
of  the  tribe  is  so  educated  as  to  fit  him  for  the  purposes  of 
the  tribe — to  fit  him  for  helping  it  in  maintaining  its 
existence,  or  subjugating  its  neighbours,  or  both.  Though 
not  a  State-education  in  the  modern  sense,  the  education  is 
one  prescribed  by  custom  and  enforced  by  public  opinion. 
That  it  is  the  business  of  the  society  to  mould  the  individual 
is  asserted  tacitly  if  not  openly. 

With  that  social  progress  which  forms  larger  communities 
regularly  governed,  there  goes  a  further  development  of 
State-education.  Not  only  are  there  now  deliberately 
cultivated  the  needful  strength,  skill,  and  endurance,  but 
there  is  cultivated  that  subordination  which  is  required  for 
the  performance  of  military  evolutions,  and  that  further 
subordination  to  leaders  and  to  rulers  without  which. the 
combined  forces  cannot  be  used  in  the  desired  ways.  It  is 
needless  to  do  more  than  name  Greece,  and  especially 
Sparta,  as  exemplifying  this  phase. 

With  this  practice  went  an  appropriate  theory.  From 
the  belief  that  the  individual  belonged  neither  to  himself 
nor  to  his  family  but  to  his  city,  there  naturally  grew  up 
the  doctrine  that  it  was  the  business  of  his  city  to  mould 
him  into  fitness  for  its  purposes.     Alike  in  Plato  and  in 


I 


THE    LIMITS    OF    STATE-DUTIES.  253 

Aristotle  we  have  elaborate  methods  proposed  for  the  due 
preparation  of  children  and  youths  for  citizenship,  and  an 
unhesitating  assumption  that  in  a  good  State,  education 
must  be  a  public  business. 

Evidently,  then,  while  war  is  the  chief  business  of  life, 
the  training  of  individuals  by  governmental  agency  after  a 
pattern  adapted  to  successful  fighting,  is  a  normal  accompani- 
ment. In  this  case  experience  furnishes  a  tolerably  correct 
ideal  to  be  aimed  at,  and  guidance  in  the  choice  of  methods 
productive  of  the  ideal.  All  free  men  have  to  be  made 
as  much  as  may  be  into  military  machines,  automatically 
obedient  to  orders ;  and  a  unifying  discipline  is  required 
to  form  them.  Moreover,  just  as  in  the  militant  type  the 
coercive  system  of  rule  which  regimentation  involves,  spreads 
from  the  fighting  part  throughout  the  whole  of  the  ancillary 
parts  which  support  it ;  so,  there  naturally  establishes  itself 
the  theory  that  not  soldiers  only,  but  all  other  members 
of  the  community,  should  be  moulded  by  the  government 
into  fitness  for  their  functions. 

§  137.  Not  recognizing  the  fundamental  distinction  be- 
tween a  society  which,  having  fighting  for  its  chief  business, 
makes  sustentation  subordinate,  and  a  society  which,  having 
sustentation  for  its  chief  business,  makes  fighting  subor- 
dinate, there  are  many  who  assume  that  a  disciplinary 
policy  appropriate  to  the  first  is  appropriate  to  the  last 
also.  But  the  relations  of  the  individual  to  the  State  ai*e  in 
the  two  cases  entirely  different.  Unlike  the  Greek,  who, 
not  owning  himself  was  owned  by  his  city,  the  Englishman 
is  not  in  any  appreciable  degree  owned  by  his  nation,  but 
in  a  very  positive  way  owns  himself.  Though,  if  of  fit 
age,  he  may  on  great  emergency  be  taken  possession  of 
and  made  to  help  in  defending  his  country;  yet  this  con- 
tingency qualifies  to  but  small  extent  the  private  possession 
of  his  body  and  the  self-directing  of  his  actions. 

Throughout    a    series    of    chapters   we    saw    that    the 


254  JUSTICE. 

progressive  establishment  by  law  of  those  rights  which  are 
deduced  by  ethics^  made  good  the  free  use  of  himself  by 
each  individual,  not  only  against  other  individuals  but,  in 
many  respects,  against  the  State:  the  State,  while  defending 
him  against  the  aggressions  of  others,  has  in  various 
directions  ceased  to  aggress  upon  him  itself.  And  it  is  au 
obvious  corollary  that  in  a  state  of  permanent  peace  this 
change  of  relation  would  be  complete. 

How  does  this  conclusion  bear  on  the  question  at  issue? 
The  implication  is  that  whereas  the  individual  had  to  be 
moulded  by  the  society  to  suit  its  purposes,  the  society  has 
now  to  be  moulded  by  the  individual  to  suit  his  purposes. 
Instead  of  a  solidified  body-politic,  wielding  masses  of  its 
units  in  combined  action,  the  society,  losing  its  coercive 
organization,  and  holding  together  its  units  with  no  other 
bonds  than  are  needed  for  peaceful  co-operation,  becomes 
simply  a  medium  for  their  activities.  Once  more  let  me 
emphasize  the  truth  that  since  a  society  in  its  corporate 
capacity  is  not  sentient,  and  since  the  sentiency  dwells 
exclusively  in  its  units,  the  sole  reason  for  subordinating 
the  sentient  lives  of  its  units  to  the  unsentient  life  of  the 
society,  is  that  while  militancy  continues  the  sentient  lives 
of  its  units  are  thus  best  presei'ved  ;  and  this  reason  lapses 
partially  as  militancy  declines,  and  wholly  as  industrialism 
becomes  complete.  The  claim  of  the  society  to  discipline 
its  citizens  disappears.  There  remains  no  power  which 
may  properly  prescribe  the  form  which  individual  life 
shall  assume. 

"  But  surely  the  society  in  its  corporate  capacity,  guided 
by  the  combined  intelligences  of  its  best  members,  may 
with  advantage  frame  a  conception  of  an  individual  nature 
best  fitted  for  harmonious  industrial  life,  and  of  the 
discipline  calculated  to  produce  such  a  nature  ?  "  In  this 
plea  there  is  tacitly  assumed  the  right  of  the  commuuity 
through  its  agents  to  impose  its  scheme — an  assumed  right 
quite  inconsistent  with  the  conclusions  drawn  in  foregoing 


THE    LIMITS   OP   STATE-DUTIES.  255 

chapters.  But  not  liere  dwelling  on  this,  let  us  ask  what 
fitness  the  community  has  for  deciding  on  the  character  to 
be  desired,  and  for  devising  means  likely  to  create  it. 

§  188.  Whether  the  chosen  ideal  of  a  citizen,  and  the 
chosen  process  for  producing  him,  be  good  or  bad,  the 
choice  inevitably  has  three  implications,  any  one  of  which 
condemns  it. 

The  system  must  work  towards  uniformity.  If  the 
measures  taken  have  any  effect  at  all,  the  effect  must  in 
part  be  that  of  causing  some  likeness  among  the  individuals : 
to  deny  this  is  to  deny  that  the  process  of  moulding  is 
operative.  But  in  so  far  as  uniformity  results  advance  is 
retarded.  Everyone  who  has  studied  the  order  of  nature 
'  knows  that  without  variety  there  can  be  no  progress — 
knows  that,  in  the  absence  of  variety,  life  w^ould  never 
have  evolved  at  all.  The  inevitable  implication  is  that 
further  progress  must  be  hindered  if  the  genesis  of  variety 
is  checked. 

^  Another  concomitant  must  be  the  production  of  a  passive 
receptivity  of  whatever  form  the  State  decides  to  impress. 
Whether  submissiveness  be  or  be  not  part  of  the  nature 
which  the  incorporated  society  proposes  to  give  its  units, 
it  cannot  enforce  its  plans  without  either  finding  or 
creating  submissiveness.  Whether  avowedly  or  not, 
part  of  the  desired  character  must  be  readiness  in  each 
citizen  to  submit,  or  make  his  children  submit,  to  a 
discipline  which  some  or  many  citizens  determine  to  impose. 
There  may  be  men  who  think  it  a  trait  of  high  humanity 
thus  to  deliver  over  the  formation  of  its  nature  to  the  will 
of  an  aggregate  mostly  formed  of  inferior  units.  But  with 
such  we  will  not  argue. 

One  further  necessary  implication  is  that  either  there  exists 
no  natural  process  by  which  citizens  are  in  course  of  being 
moulded,  or  else  that  this  natural  process  should  be  super- 
seded   by  an    artificial    one.     To    assert   that   there  is  no 


256  JUSTICE. 

natural  process  is  to  assert  ttafc,  nnlike  all  other  beings, 
whicli  tend  ever  to  become  adapted  to  their  environments, 
the  buman  being  does  not  tend  to  become  adapted  to  bis 
environment — does  not  tend  to  undergo  such  changes  as 
fit  him  for  carrying  on  the  life  which  circumstances  require 
him  to  lead.  Anyone  who  says  this  must  say  that  the 
varieties  of  mankind  have  arisen  without  cause ;  or  else 
have  been  caused  by  governmental  action.  Anyone  who 
does  not  say  this  must  admit  that  men  are  in  course  of 
being  naturally  adjusted  to  the  requirements  of  a  developed 
social  state;  and  if  he  admits  this^  he  will  hesitate  before  he 
asserts  that  they  may  be  better  adjusted  artificially. 

§  139.  Let  us  pass  now  from  these  most  abstract  aspects 
of  the  matter  to  more  concrete  aspects. 

It  is  decided  to  create  citizens  having  forms  fit  for  the 
life  of  their  society.  Whence  must  the  conception  of  a  fit 
form  be  derived  ?  Men  inherit  not  only  the  physical  and 
mental  constitutions  of  their  ancestors,  but  also,  in  the 
main,  their  ideas  and  beliefs.  The  current  conception  of  a 
desirable  citizen  must  therefore  be  a  product  of  the  past, 
slightly  modified  by  the  present ;  and  the  proposal  is  that 
past  and  present  shall  impose  their  conception  on  the 
future.  Anyone  who  takes  an  impersonal  view  of  the 
matter  can  scarcely  fail  to  see  in  this  a  repetition,  in 
another  sphere,  of  follies  committed  in  every  age  by  every 
people  in  respect  of  religious  beliefs.  In  all  places  and  in 
all  times,  the  average  man  holds  that  the  creed  in  which  he 
has  been  brought  up  is  the  only  true  creed.  Though  it 
must  be  manifest  to  him  that  necessarily  in  all  cases  but 
one,  such  beliefs,  held  with  confidence  equal  to  that  which 
he  feels,  are  false ;  yet,  like  each  of  the  others,  he  is  cer- 
tain that  his  belief  is  the  exception.  A  confidence  no  less 
absurd,  is  shown  by  those  who  would  impose  on  the 
future  their  ideal  citizen.  That  conceived  type  which  the 
needs  of  past  and  present  times  have  generated,  they  do 


THE    LIMITS    OP    STATE-DUTIES.  257 

not  doubt  -vrould  be  a  type  appropriate  for  times  to  come. 
Yet  it  needs  but  to  go  back  to  the  remote  past,  when 
industrial  life'  was  held  contemptible  and  virtue  meant 
foititude,  valour,  bravery ;  or  to  the  less  remote  past  when 
noble  meaut  high-born  while  labourer  and  villein  were 
equivalents;  or  to  the  time  when  abject  submission  of  each 
grade  to  the  grade  above  was  thought  the  primary  duty ; 
or  to  the  time  when  the  good  citizen  of  every  rank  was 
held  bound  to  accept  humbly  the  appointed  creed ;  to  see 
that  the  characters  supposed  to  be  proper  for  men  were 
unlike  the  characters  we  now  suppose  proper  for  them. 
Nevertheless,  the  not-very-wise  representatives  of  electors 
who  are  mostly  ignorant,  are  prepared,  with  papal  assump- 
tion, to  settle  the  form  of  a  desirable  human  nature,  and 
to  shape  the  coming  generation  into  that  form. 

While  they  are  thus  confident  about  the  thing  to  be 
clone,  they  are  no  less  confident  about  the  way  to  do  it; 
though  in  the  last  case  as  in  the  first,  the  past  proves  to 
them  how  utter  has  been  the  failure  of  the  methods 
century  after  century  pursued.  Throughout  a  Christendom 
full  of  churches  and  pi'iests,  full  of  pious  books,  full  of 
observances  directed  to  fostering  the  Teligion  of  love, 
encouraging  mercy  and  insisting  on  forgiveness,  we  have 
an  aggressiveness  and  a  revengefulness  such  as  savages 
have  everywhere  shown.  And  from  people  who  daily  read 
their  bibles,  attend  early  services,  and  appoint  weeks  of 
prayer,  there  are  sent  out  messengers  of  peace  to  inferior 
races,  who  are  forthwith  ousted  from  their  lands  by 
filibustering  expeditions  authorized  in  Downing  Street; 
while  those  who  resist  are  treated  as  "rebels,"  the  deaths 
they  inflict  in  retaliation  are  called  "  murders,"  and  the 
process  of  subduing  them  is  named  '^  pacification." 

At  the  same  time  that  we  thus  find  good  reason  to 
reject  the  artificial  method  of  moulding  citizens  as  wrong 
iu  respect  alike  of  end  and  means,  we  have  good  reason  to 

12 


258  JUSTICE. 

put  faitli  in  tlie  natural  metliod— the  spontaneous  adaptation 
of  citizens  to  social  life. 


§  140.  The  organic  world  at  large  is  made  up  of  illustra- 
tions, infinite  in  number  and  variety,  of  the  truth  that 
by  direct  or  indirect  processes  the  faculties  of  each  kind 
of  creature  become  adjusted  to  the  needs  of  its  life;  and 
further,  that  the  exercise  of  each  adjusted  faculty  becomes 
a  source  of  gratification.  In  the  normal  order  not  only 
does  there  arise  an  agent  for  each  duty,  but  consciousness 
is  made  up  of  the  more  or  less  pleasurable  feelings  which 
accompany  the  exercise  of  these  agents.  Further,  the 
implication  is  that  where  the  harmony  has  been  deranged, 
it  gradually  re-establishes  itself — that  where  change  of 
circumstances  has  put  the  powers  and  requirements  out  of 
agreement,  they  slowly,  either  by  survival  of  the  fittest  or 
by  the  inherited  effects  of  use  and  disuse,  or  by  both,  come 
into  agreement  again. 

This  law,  holding  of  human  beings  among  others,  implies 
that  the  nature  which  we  inherit  from  an  uncivilized 
past,  and  which  is  still  very  imperfectly  fitted  to  the 
partially-civilized  present,  will,  if  allowed  to  do  so,  slowly 
adjust  itself  to  the  requirements  of  a  fully-civilized  future. 
And  a  further  implication  is  that  the  various  faculties, 
tastes,  abilities,  gradually  established,  will  have  for  their 
concomitants  the  satisfactions  felt  in  discharging  the  various 
duties  social  life  entails.  Already  there  has  been  gained  a 
considerable  amount  of  the  needful  capacity  for  work,  which 
savages  have  not;  already  the  power  of  orderly  co-operation 
under  voluntary  agreement  has  been  developed;  already 
such  amounts  of  self-restraint  have  been  acquired  that  most 
men  carry  on  their  lives  without  much  impeding  one 
another ;  already  the  altruistic  interests  felt  by  citizens  in 
social  aifairs  at  large  are  such  as  prompt  efforts,  individual 
and  spontaneously  combined,  to  achieve  public  ends ;  and 


THE    LIMITS    OP    STATE-DUTIES.  259 

already  men's  syrapatliies  have  become  active  enongli  to 
generate  multitudinous  pliilantliropic  agencies — too  multi- 
tudinous in  fact.  And  if,  in  tlie  course  of  these  few 
thousand  years,  the  discipline  of  social  life  has  done  so  much, 
it  is  folly  to  suppose  that  it  cannot  do  more — folly  to  suppose 
that  it  will  not  in  course  of  time  do  all  that  has  to  be  done. 

A  further  truth  remains.  It  is  impossible  for  artificial 
moulding  to  do  that  which  natural  moulding  does.  For 
the  very  essence  of  the  process  as  spontaneously  carried  on, 
is  that  each  faculty  acquires  fitness  for  its  function  by 
performing  its  function ;  and  if  its  function  is  performed  for 
it  by  a  substituted  agency,  none  of  the  required  adjustment 
of  nature  takes  place ;  but  the  nature  becomes  deformed  to 
fit  the  artificial  arrangements  instead  of  the  natural  arrange- 
ments. More  than  this :  it  has  to  be  depleted  and  dwarfed, 
for  the  support  of  the  substituted  agencies.  Not  only  does 
there  result  the  incapable  nature,  the  distorted  nature, 
and  the  nature  which  misses  the  gratifications  of  desired 
achievement ;  but  that  the  superintending  instrumentalities 
may  be  sustained,  the  sustentation  of  those  who  are  super- 
intended is  diminished :  their  lives  are  undermined  and 
their  adaptation  in  another  way  impeded. 

Again,  then,  let  me  emphasize  the  fundamental  distinction. 
While  war  is  the  business  of  life,  the  entailed  compulsory 
co-operation  implies  moulding  of  the  units  by  the  aggregate 
to  serve  its  purposes  ;  but  when  there  comes  to  predominate 
the  voluntary  co-operation  characterizing  industrialism,  the 
moulding  has  to  be  spontaneously  achieved  by  self-adjust- 
ment to  the  life  of  voluntary  co-operation.  The  adjustment 
cannot  possibly  be  otherwise  produced. 

§  141.  And  now  we  come  round  again  at  last  to  the 
general  principle  enunciated  at  first.  All  reasons  for  going 
counter  to  the  primary  law  of  social  life  prove  invalid;  and 
there  is  no  safety  but  in  conformity  to  that  law. 

If  the  political  meddler  could  be  induced  to  contemplate 


260  JUSTICE. 

tlie  essential  meaning  of  his  plan,  lie  ■would  be  paralyzed 
by  the  sense  of  his  own  temerity.  He  proposes  to  suspend, 
in  some  way  or  degree,  that  process  by  which  all  life  has 
been  evolved — to  divorce  conduct  from  consequence. 
While  the  law  of  life  at  large  is  to  be  partially  broken  by 
him,  he  would  more  especially  break  that  form  of  it 
which  results  from  the  associated  state.  Traversing  by  his 
interference  that  principle  of  justice  common  to  all  living 
things,  he  would  traverse  more  especially  the  piinciple  of 
human  justice,  which  requires  that  each  shall  enjoy  the 
benefits  achieved  within  the  needful  limits  of  action :  he 
would  re-distribute  the  benefits.  Those  results  of  accumu- 
lated experiences  in  each  civilized  society  which,  registered 
in  laws,  have,  age  after  age,  established  men's  rights 
with  increasing  clearness,  he  proposes  here  or  there  to 
ignore,  and  to  trespass  on  the  rights.  And  whereas  in 
the  course  of  centuries,  the  ruling  powers  of  societies, 
while  maintaining  men's  rights  against  one  another  more 
effectually,  have  also  themselves  receded  from  aggressions 
on  those  rights,  the  legislative  schemer  would  invert  tbi? 
course,  and  decrease  that  freedom  of  action  which  has  been 
increasing.  Thus  his  policy,  setting  at  nought  the  firsi 
principle  of  life  at  large  and  the  first  principle  of  socia 
life  in  particular,  ignores  also  the  generalized  results  o 
observations  and  experiments  gathered  during  thousands  o: 
years.  And  all  with  what  warrant  ?  All  for  certain  reason; 
of  apparent  policy,  every  one  of  which  we  have  found  t( 
be  untrustworthy. 

But  why  needs  there  any  detailed  refutation  ?  What  cai 
be  a  more  extreme  absurdity  than  that  of  proposing  t< 
improve  social  life  by  breaking  the  fundamental  law  o 
social  life  ? 


I 


APPENDICES, 


APPENDIX  A. 
THE  KAXTIAX  IDEA  OF  RIGHTS. 

Among  tlie  tracks  of  tliouglit  pursued  by  multitudinous  minds 
in  the  course  of  ages,  nearly  all  must  have  been  entered  upon  if 
not  explored.  Hence  the  probability  is  greatly  against  the  as- 
sumption of  entire  novelty  in  any  doctrine.  The  remark  is  sug- 
gested by  an  instance  of  such  an  assumption  erroneously  made. 

The  fundamental  principle  enunciated  in  the  chapter  entitled 
'•The  Formula  of  Justice,"  is  one  which  I  set  forth  in  Social 
St'dics :  the  Conditions  essential  to  Human  Happiness  specified 
cad  the  first  of  them  developed,  originally  published  at  the  close 
ft"  1850.  I  then  supposed  that  I  %yas  the  first  to  recognize  the 
Irnv  of  equal  freedom  as  being  that  in  ■which  justice,  as  variously 
exemplified  in  the  concrete,  is  summed  up  in  the  abstract.  I  was 
\\rong,  however.  In  the  second  of  two  articles  entitled  "  Mr. 
Herbert  Spencer's  Theory  of  Society,"  published  by  ^Ir.  F.  W. 
Maitland  (now  Downing  Professor  of  Law  at  Cambridge)  in 
Mind,  vol.  viii.  (1883),  pp.  508-9,  it  was  pointed  out  that  Kant 
had  already  enunciated,  in  other  words,  a  similar  doctrine.  Not 
being  able  to  read  the  German  quotations  given  by  Mr.  Maitland, 
I  was  unable  to  test  his  statement.  When,  however,  I  again 
took  up  the  subject,  and  reached  the  chapter  on  "  The  Formula 
of  Justice,"  it  became  needful  to  ascertain  definitely  what  were 
Kant's  views.  I  found  them  in  a  recent  translation  (1887)  by 
Mr.  W.  Hastie,  entitled  The  Philosophy  of  Laio,  An  Exposition 
of  the  Fundamental  Principles  of  Jurisprudence  as  the  Science 
of  Bight.  In  this,  at  p.  45,  occurs  the  sentence  : — "  Right,  there- 
fore, comprehends  the  whole  of  the  conditions  under  which 
the  voluntary  actions  of  any  one  Person  can  be  harmonized 
in   reality   with   the   voluntary  actions    of   every  other   Person, 


26  i  APPENDIX  A. 

according  to  a  universal  Law  of  Freedom."     And  then  there 
follows  this  section  : — 

"  UNIVEESAL  PEINCIPLE  OF  EIGHT. 

" '  Every  Action  is  right  which  in  itself,  or  in  the  maxim  on  which  it 
proceeds,  is  such  that  it  can  co-exist  along  with  the  Freedom  of  the  Will  of 
each  and  all  in  action,  according  to  a  i;niversal  Law.' 

"  If,  then,  my  action  or  my  condition  generally  can  co-exist  with  the 
freedom  of  every  other,  according  to  a  universal  Law,  anyone  does  me  a 
wrong  who  hinders  me  in  the  performance  of  this  action,  or  in  the  mainten- 
ance of  this  condition.  For  such  a  hindrance  or  obstruction  cannot  co-exist 
with  Freedom  according  to  universal  Laws. 

"  It  follows  also  that  it  cannot  be  demanded  as  a  matter  of  Eight,  that 
this  universal  Principle  of  all  maxims  shall  itself  be  adopted  as  my  maxim, 
that  is,  that  I  shall  make  it  the  maxim  of  my  actions.  For  anyone  may  be 
free,  although  his  Freedom  is  entirely  indifferent  to  me,  or  even  if  I  wished 
in  my  heart  to  infringe  it,  so  long  as  I  do  not  actually  violate  that  freedom 
by  my  external  action.  Ethics,  however,  as  distinguished  from  Jurisprudence, 
imposes  upon  me  the  obligation  to  make  the  fulfilment  of  Right  a  maxim  of 
my  conduct. 

"  The  universal  Law  of  Eight  may  then  be  expressed,  thus :  '  Act 
externally  in  such  a  manner  that  the  free  exercise  of  thy  Will  may  be  able 
to  co-exist  with  the  Freedom  of  all  others,  according  to  a  universal  Law.' 
This  is  undoubtedly  a  Law  which  imposes  obligation  upon  me ;  but  it  does 
not  at  all  imply  and  still  less  command  that  I  ounht,  merely  on  account  of 
this  obligation,  to  limit  my  freedom  to  these  very  conditions.  Eeason  in 
this  connection  says  only  that  it  is  restricted  thus  far  by  its  Idea,  and  may 
be  likewise  thus  limited  in  fact  by  others  ;  and  it  lays  this  down  as  a  Postulate 
which  is  not  capable  of  iurtlier  proof.  As  the  object  in  view  is  not  to  teach 
Virtue,  but  to  explain  what  right  is,  thus  far  the  Lav/  of  Eight,  as  thus  laid 
down,  may  not  and  should  not  be  represented  as  a  motive-principle  of  action." 

These  passages  make  it  clear  that  Kant  had  arrived  at  a 
conclusion  which,  if  not  the  same  as  my  own,  is  closely  allied  to 
it.  It  is,  however,  worth  remaining  that  Kant's  conception, 
similar  though  it  is  in  nature,  differs  both  in  its  origin  and  in 
its  form. 

As  shown  on  a  preceding  page,  his  conclusion  is  reached 
by  a  "  search  in  the  pure  Reason  for  the  sources  of  such 
judgments" — forms  a  part  of  the  "  metaphj^sic  of  morals"; 
whereas,  as  shown  on  pp.  67-8  of  the  original  edition  of  Social 
Statics,  the  law  of  equal  freedom,  there  shadowed  forth  and 
subsequently  stated,  is  regarded  as  expressing  the  primary 
condition  which  must  be  fulfilled  before  the  gi^eatest  happiness 
can  be  achieved  by  similar  beings  living  in  proximity.  Kant 
enunciates  an  a  priori  requirement,  contemplated  as  iire- 
spective  of  beneficial  ends  ;  whereas  I  have  enunciated  this 
a  priori  requirement  as  one  which,  under  the  circumstances 
necessitated  by  the  social  state,  must  b^  conformed  to  for 
achievement  of  beneficial  ends. 

The  noteworthy  distinction  between  the  forms  in  which  the 
conception  is  presented   is  this.     Though  (on  p.  oG)  Kant,  by 


THE    KANTIAN    IDEA   OF    RIGHTS.  265 

saying  that  "  there  is  only  one  innate  rip:ht,  the  birthright  of 
freedom,"  clearly  recognizes  the  positive  element  in  the  concep- 
tion of  justice  ;  yet,  in  the  passages  quoted  above,  the  right  of 
the  individual  to  freedom  is  repi-esented  as  emerging  by  implica- 
tion fi-om  the  wrongfulness  of  acts  which  aggress  upon  this 
freedom.  The  negative  element,  or  obligation  to  respect  limits, 
is  the  dominant  idea ;  whereas  in  my  own  case  the  positive 
element — the  right  to  freedom  of  action — is  represented  as 
primary ;  while  the  negative  element,  resulting  from  the 
limitations  imposed  by  the  pi*esence  of  others,  is  represented  as 
secondary.  This  distinction  may  not  be  without  its  significance ; 
for  the  putting  of  obligation  in  the  foreground  seems  natural  to 
a  social  state  in  which  political  restraints  are  strong,  while  the 
putting  of  claims  in  the  foreground  seems  natural  to  a  social 
state  in  which  there  is  a  greater  assertion  of  individualitj. 


APPENDIX  B. 

THE   LAND-QUESTION. 

The  cotirse  of  Nature,  "red  in  tooth  and  claw,"  lias  been,  on 
a  higlier  plane,  the  course  of  civilization.  Through  "  blood  and 
iron"  small  clusters  of  men  have  been  consolidated  into  larger 
ones,  and  these  again  into  still  larger  ones,  until  nations  have 
been  formed.  This  process,  carried  on  everywhere  and  always 
by  brute  force,  has  resulted  in  a  history  of  wrongs  upon  wrongs  : 
savage  tribes  have  been  slowly  welded  together  hj  savage 
means.  We  could  not,  if  we  tried,  trace  back  the  acts  of 
unscrupulous  violence  committed  dui'ing  these  thousands  of 
years;  and  could  we  trace  them  back  we  could  not  rectify  their 
evil  results. 

Land-ownership  was  established  during  this  process ;  and  if 
the  genesis  of  land-ownership  was  full  of  iniquities,  they  were 
iniquities  committed  not  by  the  ancestors  of  any  one  class 
of  existing  men  but  by  the  ancestors  of  all  existing  men.  The 
remote  forefathers  of  living  Englishmen  were  robbers,  who  stole 
the  lands  of  men  who  were  themselves  robbers,  who  behaved  iu 
like  manner  to  the  robbers  who  preceded  them.  The  usur- 
pation by  the  Normans,  here  complete  and  there  partial,  was  of 
lands  which,  centuries  before,  had  been  seized,  some  by  piratical 
Danes  and  Norsemen,  and  some  at  an  earlier  time  by  hordes  of 
invading  Frisians  or  old  English.  And  then  the  Celtic  owners, 
expelled  or  enslaved  by  these,  had  in  bygone  ages  themselves 
expropriated  the  peoples  who  lived  in  the  underground  houses 
here  and  there  still  traceable.  What  would  hajDpen  if  we  tried 
to  restore  lands  inequitably  taken — if  Normans  had  to  give 
them  back  to  Danes  and  Norse  and  Frisians,  and  these  again  to 
Celts,  and  these  again  to  the  men  who  lived  in  caves  and  used 
flint  implements  ?  The  only  imaginable  form  of  the  transaction 
would  be  a  restoration  of  Great  Britain  bodily  to  the  Welsh 
and  the  Highlandex's ;  and  if  the  Welsh  and  the  Highlanders 


THE    LAND-QUESTION.  267 

did  not  make  a  kindred  restoration,  it  conld  only  bo  on  the 
ground  that,  having  not  only  taken  the  land  of  the  aborigines 
but  killed  them,  they  had  thus  justified  their  ownership  ! 

The  wish  now  expressed  by  man 3  that  land-ownership  should 
be  conformed  to  the  requirements  of  pure  equity,  is  in  itself 
commendable ;  and  is  in  some  men  prompted  by  conscientious 
feeling.  One  would,  however,  like  to  hear  from  such  the 
demand  that  not  only  here  but  in  the  various  regions  we  are 
peopling,  the  requirements  of  pure  equity  shouUl  be  conformed 
to.  As  it  is,  the  indignation  against  wrongful  appropriations 
of  land,  made  in  the  past  at  home,  is  not  accompanied  by  any 
indignation  against  the  more  wrongful  appropriations  made 
at  present  abroad.  Alike  as  holders  of  the  predominant  political 
power  and  as  furnishing  the  rank  and  file  of  our  armies,  the 
masses  of  the  people  are  responsible  for  those  nefarious  doings 
all  over  the  world  whicb  end  in  the  seizing  of  new  territories 
and  expropriation  of  their  inhabitants.  The  filibustering  expe- 
ditions of  the  old  English  are  repeated,  on  a  vastly  larger  scale, 
in  the  filibustering  expeditions  of  the  new  English.  Yet  those 
who  execrate  ancient  usurpations  utter  no  word  of  protest 
against  these  far  greater  modern  usurpations — nay,  ai'e  aiders 
and  abettors  in  them.  Remaining  as  they  do  passive  and  silent 
while  there  is  going  on  this  universal  land-grabbing  which  their 
votes  could  stop ;  and  supplying  as  they  do  the  soldiers  who 
effect  it ;  they  are  responsible  for  it.  By  deputy  they  are 
committing  in  this  matter  grosser  and  more  numerous  injustices 
than  were  committed  against  their  forefathers. 

That  the  masses  of  landless  men  should  regard  private  land- 
ownership  as  having  been  wrongfully  established,  is  natural ; 
and,  as  we  have  seen,  they  are  not  without  warrant.  But  if  we 
entertain  the  thought  of  rectification,  there  arises  in  the  first 
place  the  question — which  are  the  wronged  and  which  are  the 
wrongers  ?  Passing  over  tlie  primary  fact  that  the  ancestors 
of  existing  Englishmen,  landed  and  landless,  were,  as  a  body, 
men  who  took  the  land  by  violence  from  previous  owners ;  and 
thinking  only  of  the  force  and  fraud  by  which  certain  of  these 
ancestors  obtained  possession  of  the  land  while  others  of 
them  lost  possession ;  the  preliminary  question  is — Which  are 
the  descendants  of  the  one  and  of  the  other  ?  It  is  tacitly 
assumed  that  those  who  now  own  lands  are  the  posterity  of  the 
usurpers,  and  that  those  who  now  have  no  lands  are  the  posterity 
of  those  whose  lands  were  usurped.  But  this  is  far  from  being 
the  case.  The  fact  that  among  the  nobility  there  are  very  few 
•whose  titles  go  back  to  the  days  when  the  last  usurpations  took 
place,  and  none  to  the  days  when  there  took  place  the  original 
usurpations  ;  joined  with  the  fact  that  among  existing  land- 
owners there  are  many  whose  names  imply  artizan-ancestors; 


268  APPENDIX   B. 

slio-vr  tliat  -vre  liave  not  now  to  deal  wifh  descendants  of  thorn 
■who  unjustly  appropriated  the  h\nd.  While,  conversely,  the 
numbers  of  the  landless  T\-hose  names  prove  that  their  fore- 
fathers belono-ed  to  the  hiahcr  ranks  (numbers  ^vhich  must  be 
doubled  to  take  account  of  iuter-marriages  with  female  descen- 
dants) show  that  among  those  who  are  now  without  land,  many 
inherit  the  blood  of  the  land-usurpers.  Hence,  that  bitter 
feeling  towards  the  landed  which  contemplation  of  the  past 
generates  in  many  of  the  landless,  is  in  great  measure  mis- 
placed. They  are  themselves  to  a  considerable  extent  descen- 
dants of  the  sinners ;  while  these  they  scoavI  at  are  to  a  con- 
sidera,ble  extent  descendants  of  the  siuned-against. 

But  granting  all  that  is  said  about  past  inequities,  and  leaving 
aside  all  other  obstacles  in  the  way  of  an  equitable  re-arrange- 
ment, there  is  an  obstacle  which  seems  to  have  been  overlooked. 
Even  supposing  that  the  English  as  a  race  gained  posses.sion  of 
the  land  equitably,  which  they  did  not;  and  even  supposing 
that  existing  land-owners  are  the  posterity  of  those  who  spoiled 
their  fellows,  which  in  large  part  they  are  not ;  and  even  sup- 
posing that  the  existing  landless  are  the  posterity  of  the 
despoiled,  which  in  large  part  they  are  not;  there  would,  still 
have  to  be  recognized  a  transaction  that  goes  far  to  prevent 
rectification  of  injustices.  If  we  are  to  go  back  upon  the  past 
at  all,  we  must  go  back  upon  the  past  wholly,  and  take  account 
not  only  of  that  which  the  people  at  large  have  lost  by  priTato 
appropriation  of  land,  but  also  that  which  they  have  received  in 
the  form  of  a  share  of  the  returns — we  must  take  account,  that 
is,  of  Poor-Law  relief.  Mr.  T.  Mackay,  author  of  The  English 
Poor,  has  kindly  furnished  me  with  the  following  memoranda, 
showing  something  like  the  total  amount  of  this  since  the  43rd 
Elizabeth  (1601)  in  England  and  Wales. 

Sir  G.  Nicholls  [History  of  Poor  Law,  appendix  to  Vol.  II]  ventures  no 
es-timate  till  1688.  At  that  date  he  puts  the  poor  rate  at  nearly  £700,000 
a  year.  Till  the  beginning  of  this  century  the  amounts  are  based  more  or 
less  on  estimate. 

1601-1630.  say  3  millions. 

1631-1700.        [1688  Nicholls  puts  at  700,000.]  30 

1701-1720.         [1701  Kicholls  puts  at  900,000.]  20 

1721-1760,         [1760  Nicholls  savs  1^  milhons.]  40 

1761-1775.         [1775  put  at  IJ  mihions.]  22 

1776-1800.         [I78i   2  millious.]  50 

1801-1812.         [1803   4  millions ;  1813    6  millions.]  G5         „ 

1813-1840.         [based  on  exact  figures  given  bv  Sir  G. 

Nicholls.]  170         „ 

1841-1890.         [based  on  Mulb all's  Diet,  of  Statistics 

and  Statistical  Abstract.]  334        „ 

734  milhons. 
The  above  represents  the  amount  expended  in  relief  of  the  poor. 


THE    LAND-QUESTION.  269 

Under  the  goneml  term  "poor-rate,"  moneys  have  always 
been  collected  for  otlier  purposes — county,  borough,  police  rates, 
&c.  The  following  table  shows  the  annual  amounts  of  these  in 
connexion  with  the  annual  amounts  expended  on  the  poor. 


Sir  G. 

KichoUs. 


Total  levied. 

In  1803.  5.348.000 

„  1813.  8.640.841 

„  1853.  6.522.412 


Total   spent. 
Statistical  J    „  1875.  12.G94.208 

abstract.    1    „  1889.  15.970.126 


Expended  on 

poor. 

4.077.000 

6.G50.106 

4.939.064 


7.488.481 
8.366.477 


Other  pui-poscs 

balance. 

1.271.000  ? 

1.990.735  ? 

1.583.341  ? 

Sum  spent. 
5.205.727 
7.603.649 


In  addition,  therefore,  to  sums  set  out  in  the  first  table,  there  is  a  further 
sum,  rising  during  the  century  from  IJ  to  7^  millions  per  annum  '  for 
other  purposes.' 

Mulhall  on  -whom  I  relied  for  figures  between  1853  and  1875  does  not  give 
"  other  expenditure." 

Of  course  of  the  £734,000,000  given  to  the  poorer  members 
of  the  landless  class  during  three  centuries,  a  part  has  arisen 
from  rates  on  houses;  only  such  portion  of  which  as  is  chargeable 
against  ground  rents,  being  rightly  included  in  the  sura  the  land 
has  contributed.  From  a  land-owner,  who  is  at  the  same  time 
a  Queon's  Counsel,  frequently  employed  professionally  to  arbi- 
trate in  questions  of  local  taxation,  I  have  received  the  opinion 
that  if,  out  of  the  total  sum  received  by  the  poor,  £500,000,000 
is  credited  to  the  land,  this  will  be  an  nnder-estimate.  Thus 
even  if  we  ignore  the  fact  that  this  amount,  gradually  con- 
tributed, would,  if  otherv\ise  gradually  invested,  have  yielded 
in  returns  of  one  or  other  kind  a  far  larger  sum,  it  is  manifest 
that  against  the  claim  of  the  landless  may  be  set  off  a  large  claim 
of  the  landed — perhaps  a  larger  claim. 

For  now  observe  that  the  landless  have  not  an  equitable 
claim  to  the  land  in  its  present  state, — cleared,  drained,  fenced, 
fertilized,  and  furnished  with  farm-buildings,  &c., — but  only  to 
the  land  in  its  primitive  state,  here  stonj'-  and  there  marshy, 
covered  with  foi-est,  gorse,  heather,  &c. :  this  only,  it  is,  which 
belongs  to  the  community.  Hence,  therefore,  the  question 
arises — What  is  the  relation  between  the  original  "prairie 
value  "  of  the  land,  and  the  amount  which  the  poorer  among  the 
landless  have  received  during  these  three  centuries.  Probably 
the  land-owners  would  contend  that  for  the  land  in  its  primitive, 
unsubdued  state,  furnishing  nothing  but  wild  animals  and  wild 
fruits,  £500,000,000  would  be  a  high  price. 

-When,  in  Social  Statics,  published  in  1850,  I  drew  from  the 
law  of  equal  freedom  the  corollary  that  the  land  could  not 
equitably  be  alienated  from  the  community,  and  argued  that, 
after    compensating    its    existing    holders,    it    should    be    re- 


270  APPENDIX  B. 

appropriated  bj  tlie  communify,  I  OTerlooTved  fhe  fores-oing 
considerations.  Moreover,  I  did  not  cloarlj  see  what  wonld  be 
implied  by  the  giving  of  compensation  for  all  that  valne  which 
the  labour  of  ages  has  given  to  the  land.  While,  as  shown  in 
Chap.  XL,  I  adhere  to  the  inference  originally  drawn,  that  the 
aggregate  of  men  forming  the  commnnity  are  the  supreme 
owners  of  the  land — an  inference  harmonizing  with  legal  doc- 
trine and  daily  acted  upon  in  legislation — a  fuller  considera- 
tion of  the  matter  has  led  me  to  the  conclusion  that  individual 
ownership,  subject  to  State-suzerainty,  should  be  maintained.  ■ 

Even  were  it  possible  to  rectify  the  inequitable  doings  which 
have  gone  on  during  past  thousands  of  years,  and  by  some 
balancing  of  claims  and  counter-claims,  past  and  present,  to 
make  a  re-arrangement  equitable  in  the  abstract,  the  resulting 
state  of  things  would  be  a  less  desirable  one  than  the  present. 
Setting  aside  all  financial  objections  to  nationalization  (which 
of  themselves  negative  the  transaction,  since,  if  equitably  effected, 
it  would  be  a  losing  one),  it  suffices  to  remember  the  inferiority 
of  public  administration  to  private  administration,  to  see  that 
ownership  by  tlie  State  would  work  ill.  Under  the  existing 
system  of  ownership,  those  who  manage  the  land,  experience  a 
direct  connexion  between  effort  and  benefit ;  while,  were  it  under 
State-ownership,  those  who  managed  it  would  experience  no 
such  direct  connexion.  The  vices  of  officialism  would  inevitably 
entail  immense  evils. 


APPENDIX  C. 

THE     MORAL     MOTIVE. 

Some  montlis  after  the  first  five  cliapters  of  this  volnma 
appeared  in  The  Nineteenth  Century,  the  Rev.  J.  Llewelyn 
Davies  published  in  The  Guardian  for  July  16,  1890,  some 
criticisms  upon  them.  Such  of  these  criticisms  as  concern 
other  questions  I  pass  over,  and  here  limit  myself  to  one  which 
concerns  the  sentiment  of  duty,  and  the  authority  of  that 
sentiment.     Mr.  Davies  says  : — 

"  To  the  best  of  my  knowledge,  Mr.  Spencer,  thongh  often  challenged,  has 
never  fully  explained  how,  with  his  philosophy,  he  can  take  advantage  of 
the  ordinary  language  and  sentiment  of  mankind  about  duty.  ...  I 
have  to  repeat  a  criticism  which  I  offered  in  my  former  paper.  Mr.  Spencer 
seems  to  me  to  imply  what  he  professes  not  to  recognise.  To  construct  the 
idea  and  sentiment  of  justice,  he  implies  a  law  having  authority  over  the 
human  mind  and  its  conduct — viz.,  that  the  well-being  of  the  species  is  to 
be  desired,  and  an  acknowledgment  by  the  human  mind  of  that  law,  a  self- 
justifying  response  to  it.  Whilst  he  confines  himself  to  tracing  natural 
evolution,  he  has  no  right  to  use  the  terms  of  duty.  What  can  be  added  to 
the  dictum  of  Kant,  and  how  can  it  be  confuted  ?— 

"If  we  fix  our  eyes  simply  upon  the  course  of  nature,  the  oufiht  has  no 
meaning  whatever.  It  is  as  absurd  to  ask  what  nature  ought  to  be  as  to  ask 
what  sort  of  properties  a  circle  ought  to  have.  The  only  question  we  can 
properly  ask  is.  What  comes  to  pass  in  nature?  just  as  we  can  only  ask, 
What  actually  are  the  properties  of  a  circle?  " 

When  Mr.  Spencer  inveighs  with  genuine  moral  vehemence  against 
aggression  and  other  forms  of  illdoing,  when  he  protests,  for  example,  against 
"  that  miserable  laissez-faire  which  calmly  looks  on  while  men  ruin  them- 
selves in  trying  to  enforce  by  law  their  equitable  claims" — he  is  borrowing 
our  thunder,  he  is  stealing  fire  from  heaven." 

And  then,  after  further  argument,  Mr.  Davies  ends  his  letter 
by  asking  for  "some  justification  of  the  use  of  ethical  terms 
by  one  who  professes  only  to  describe  natural  and  neces- 
sary processes." 

As  Mr.  Davies  forwarded  to  me  a  copy  of  The  Guardian  con- 
taining his  letter,  my  reply  took  the  form  of  a  letter  addressed 


272  ArPENDIX  c. 

to  him,  wLicTi  appeared  in  The  Guardian  for  Ang-ust  6.  With 
the  exce[)tion.  of  an  omitted  part,  relating  to  another  matter,  it 
ran  as  follows  :  — 

Fairfield,  Pewscy,  Wilts,  July  24,  1800. 
Dear  Mr.  Davies — The  copy  of  the  Guardian  has  ju=t  reached  me,  and  I 
have  read  your  criticism  with  much  interest.     Would  that  criticisms  in 
general  were  written  in  the  same  spirit ! 

***** 

In  asserting  the  illegitimacy  of  my  use  of  the  words  "  duty,"  "  ought," 
"  obligation,'  &c.,  you  remind  me  of  the  criticisms  of  Mr.  Lilly.  By  such 
community  as  exists  between  you,  amid  your  diSerences,  you  are  both  led  to 
the  assumption  that  the  idea  of  "  duty"  can  have  no  other  than  a  super- 
natural origin. 

This  assumption  implies  that  men's  actions  are  determined  only  by  re- 
cognition of  ultimate  consequences,  and  that  if  recognition  of  ultimate  con- 
sequences does  not  lead  them  to  do  right,  they  can  have  no  motive  to  do 
right.  But  the  great  mass  of  men's  actions  are  directly  prompted  by  their 
likings,  without  thought  of  remote  results  ;  and  among  actions  thus  prompted 
are,  in  many  cases,  those  which  conduce  to  other  men's  welfare.  Though, 
on  reflection,  such  actions  are  seen  to  be  congruous  with  the  ends  ranked  as 
the  highest,  yet  they  are  not  prompted  by  thought  of  such  ends. 

The  relation  of  direct  to  indirect  motives  is  best  seen  in  a  familiar  case. 
Any  normally-constituted  parent  spends  much  labour  and  thought  in 
furthering  the  welfare  of  his  children,  and  daily,  for  many  years,  is  impelled 
to  do  this  by  immediate  liking — cannot  bear  to  do  otherwise.  Nevertheless, 
while  he  is  not  impelled  to  do  what  he  does  by  the  consciousness  that  he 
ought  to  do  it,  if  you  ask  the  reasons  for  his  self-sacrificing  conduct  he  will 
say  that  he  is  under  obligation  ;  and  if  you  push  your  inquiries  to  the  end, 
you  will  compel  him  to  assign  the  fact  that  if  men  in  general  did  not  do 
the  like  the  race  would  disappear.  Though  the  consciousness  of  obligation 
may  serve  to  justify,  and  perhaps  in  a  small  degree  to  strengthen, 
the  promptings  of  his  natural  affections,  yet  these  are  quite  sulHcient 
of  themselves. 

Similarly  is  it  with  the  idea  of  obligation  in  respect  of  conduct  to  our 
fellow-men.  As  you  must  know  from  your  personal  experiences,  such  con- 
duct may  be  effectually  prompted  by  immediate  desire,  without  thought  of 
other  consequence  than  the  benefits  given.  And  though  these  benefits 
are  given  from  simple  desire  to  give  them,  if  the  question  be  raised  whether 
they  should  be  given,  there  comes  the  answer  that  it  is  a  duty  to  minister  to 
human  welfare. 

You  contend  that  my  theory  of  moral  guidance  gives  me  no  warrant  for 
anger  against  aggression,  or  other  ill  doing  :  saying  of  me  that,  in  such  case, 
"  he  is  borrowing  our  thunder."  This  implies  the  assertion  that  only  those 
who  accept  the  current  creed  have  any  right  to  feel  indignant  when  they  see 
other  men  wronged.  But  I  cannot  allow  you  thus  to  monopolize  righteous 
indignation.  If  you  ask  what  prompts  me  to  denounce  our  unjust  treatment 
of  inferior  races,  I  reply  that  I  am  prompted  by  a  feeling  which  is  aroused  in 
me  quite  apart  from  any  sense  of  duty,  quite  apart  from  any  thought  of 
Divine  command,  quite  apart  from  any  thought  of  reward  or  punishment 
here  or  hereafter.  In  part  the  feeling  results  from  consciousness  of  the 
suffering  inflicted,  which  is  a  painful  consciousness,  and  in  part  from  irrita- 
tion at  the  breach  of  a  law  of  conduct  on  behalf  of  which  my  sentiments  are 
enlisted,  and  obedience  to  which  I  regard  as  needful  for  the  welfare  of 
humanity  in  general.  If  you  say  that  my  theory  gives  me  no  reason  for  feel' 
ing  this  pain,  the  answer  is  that  I  cannot  help  feeling  it ;  and  if  you  say  that 
my  theory  gives  me  no  reason  for  my  interest  in  asserting  this  principle,  the 


THE    MORAL    MOTIVE.  273 

answer  is  that  I  cannot  help  being  interested.  And  when  analysis  shows  me 
that  the  feeling  and  the  principle  are  such  as,  if  cherished  and  acted  upon, 
must  conduce  to  the  progress  of  humanity  towards  a  higher  form,  capable 
of  greater  happuiess,  I  find  that  though  my  action  is  not  immediately 
prompted  by  the  sense  of  obligation,  yet  it  conforms  to  my  idea  of  obligation. 
That  motives  hence  resulting  may  be  adequately  operative,  you  will  find 
proof  on  recalling  certain  transactions,  dating  back  some  eight  years,  in 
which  we  were  both  concerned.  You  can  scarcely  fail  to  remember  that  tliose 
who  were  moved  by  feelings  and  ideas  such  as  I  have  described,  and  not  by 
any  motives  which  the  current  creed  furnishes,  displayed  more  anxiety 
that  our  dealings  with  alien  peoples  should  be  guided  by  what  are  called 
Christian  principles  than  is  displayed  by  Christians  in  general.*— I  am, 
sincerely  yours,  tt  o 

"'  ''  Hekbert  Spencer. 

P.S. — Should  you  wish  to  publish  this  letter  as  my  response  to  your 
appeal,  I  am  quite  willing  that  you  should  do  so.  Other  claims  on  my  time 
will,  however,  prevent  me  from  carrying  the  discussion  further. 

Along  with  this  ]ettei%  when  published  in  The  Guardian,  there 
appeared  a  rejoinder  from  Mr.  Davies,  which,  omitting,  as  before, 
a  part  concerning  a  ditlerent  question,  ran  thus  : — 

Kirkby  Lonsdale,  July  28,  1890. 
Dear  Mr.  Spencer — I  am  much  obliged  to  you  for  responding  so  kindly  to 
the  challenge  which  I  ventured  to  address  to  you.  You  will  not  think  it 
ungracious,  I  hope,  if,  notwithstanding  the  purpose  which  you  intimate  in 
your  postscript,  I  make  public  some  of  the  retlectious  which  your  letter  sug- 
gests to  me. 

*  ♦  *  *  * 

Most  amply  do  I  acknowledge  the  generous  zeal  for  human  welfare,  the 
indignation  against  oppression,  shown  by  yourself  and  otliers  who  recognise 
no  supernatural  sanction  of  morality.  The  Christianity  of  to-day  owes  much 
to — has,  I  hope,  really  gained  much  from — your  own  humane  ardour  and  the 
bold  protestations  of  the  followers  of  Comte.  A  Christian's  allegiance  is  not; 
to  the  Christian  world,  not  even  to  Christianity,  but  to  the  law  of  Christ  and 
the  will  of  the  Heavenly  Father  ;  and  he  may  as  easily  admit  that  Christians 
have  been  surpassed  in  Christian  feeling  and  action  by  agnostics  as  that  the 
priest  and  the  Levite  were  put  to  shame  by  the  Samaritan. 

I  have  also  no  difficulty  in  acknowledging  that  the  performance  of  good 
offices  may  arise  out  of  sympathy  and  pleasure  in  doing  them.  I  do  not 
understand  why  "  the  assumption  that  the  idea  of  '  duty  '  has  a  supernatural 
origin"  should  be  supposed  to  imply  "that  men's  actions  are  determined 
only  by  recognition  of  ultimate  consequences,  and  that  if  recognition  of 
ultimate  consequences  does  not  lead  them  to  do  right,  they  can  have  no 
motive  to  do  right."  I  never  thought  of  questioning  that  men  act,  in  a  great 
part  of  their  conduct,  from  the  motives  you  describe.  Wliat  I  wish  to  know 
is  why,  when  the  thought  of  duty  comes  in,  a  man  should  think  himself 
bjund  to  do,  whether  he  likes  it  or  not,  what  will  tend  to  the  preservation  of 
the  species.  It  is  quite  intelligible  to  me  that  you  "  cannot  help  "  trying  to 
protect  other  men  from  wrong :  what  I  still  fail  to  see  clearly  is,  how  your 
philosophy  justifies  you  in  reproaching  those  who  can  help  being  good.    It  is 

•  In  my  letter  as  originally  written,  there  followed  two  sentences  which  I  omitted  for 
fear  of  provoking  a  controversy,  lliiy  ran  thus:— "Even  one  of  the  religious  i>npi'M 
recognized  the  startling  contravt  hctwcfn  the  energy  of  those  who  do  not  profess  Cliris- 
tianity  and  the  iiidiflercnce  of  tho.se  who  do.  1  way  add  that  on  going  back  some  years 
further  you  will  find  tliat  a  kindred  contrast  was  implied  by  tlie  constitution  of  th? 
Jamaica  Committee." 


274  APPENDIX  C. 

nature,  you  say,  that  makes  the  thoughtful  parent  good,  that  mal:es  the 
generous  man  sacrifice  himself  for  the  benefit  of  his  fellowmen.  But  nature 
also  makes  many  parents  selfishly  regardless  of  the  interests  of  their  children ; 
nature  makes  some  men  hardened  freebooters.  If  they  also  cannot  help  being 
■what  they  are,  is  there  any  sense,  from  your  point  of  view,  in  saying  that  they 
act  as  they  ought  not  to  act  ?  Would  they  feel  that  you  were  appealing  to 
their  sense  of  duty  if  you  explained  to  them  as  a  fact  of  nature  that,  should 
other  men  do  as  they  are  doing,  the  race  would  tend  to  disappear  ?  To  Mr. 
Huxley,  as  a  philosopher,  a  taste  for  good  behaviour  belongs  to  the  same 
category  as  an  ear  for  music — some  persons  have  it  and  others  are  without 
it ;  the  question  which  I  cannot  help  asking  is  whether  that  is  the  ultimate 
word  of  your  ethics.  I  cannot  see  how  a  man  who  is  made  aware  that  he  acts 
only  from  natural  impulse  can  reasonably  consider  whether  he  ought  or 
ought  not  to  do  a  certain  tiring,  nor  how  a  man  who  knows  that  he  acts  only 
for  the  gratification  of  his  own  desires  can  reasonably  thi'ow  himself  away 
for  the  sake  of  any  advantage  to  be  won  for  others. 

As  I  do  not  quite  know  what  "  the  current  creed  "  may  be  on  the  ques- 
tions at  issue,  I  beg  leave  to  sum  up  my  own  belief  as  follows  : — The  Unseen 
Power  is  gradually  creating  mankind  by  processes  of  development,  and  the 
human  consciousness  is  so  made  as  to  be  responsive  to  the  authority  of  this 
Power  ;  justice  is  the  progressive  order  which  the  Maker  is  establishing 
amongst  human  beings,  and  it  is  binding  upon  each  man  as  he  becomes 
aware  of  it,  and  is  felt  to  be  binding,  because  he  is  the  Maker's  creature. — 
Believe  me,  very  truly  yours,  J.  Llewelyn  Davies. 

Before  proceeding  to  disciiss  fnrtlier  tlie  special  question  at 
issue,  I  may  remark,  respecting  the  more  general  question 
involved  in  Mr.  Davies'  closing  paragraph,  that  there  is  a 
curiously  close  kinship  between  his  view  and  that  which  I  have 
myself  more  than  once  expressed.  In  §  84  of  First  Frinciplea 
I  have  said,  in  reference  to  the  hesitating  inquirer : — 

"It  is  not  for  nothing  that  he  has  in  him  these  sympathies  with  some 
principles  and  repugnance  to  others.  He,  with  all  his  capacities,  and 
aspirations,  and  beliefs,  is  not  an  accident,  but  a  product  of  the  time.  He 
must  remember  that  while  he  is  a  descendant  of  the  past,  he  is  a  parent  of 
the  future  ;  and  that  his  thoughts  are  as  children  born  to  him,  which  he  may 
not  carelessly  let  die.  He,  like  every  other  man,  may  properly  consider  him- 
self as  one  of  the  myriad  agencies  through  whom  works  the  "Unknown 
Cause ;  and  when  the  Unknown  Cause  produces  in  him  a  certain  belief,  he  is 
thereby  authorized  to  profess  and  act  out  that  belief." 

And  then  in  the  Data  of  Ethics,  §  62,  speaking  of  the  different 
types  of  ethical  doctrine  as  severally  presenting  one  or  other 
aspect  of  the  truth,  I  have  said:  — 

"  The  theological  theory  contains  a  part.  If  for  the  divine  will,  supposed 
to  be  supernaturally  revealed,  we  substitute  the  naturally-revealed  end 
towards  which  the  Power  manifested  throughout  Evolution  works ;  then,  since 
Evolution  has  been,  and  is  still,  working  towards  the  highest  life,  it  follows 
that  conforming  to  those  principles  by  which  the  highest  life  is  achieved,  is 
furthering  that  end." 

Returning  now  to  the  special  question,  I  have  first  to  remark 
that  Mr.  Davies,  and  those  who  take  kindred  views,  tacitly 
assume  that  the  conception  of  "  ought "  is  a  universal  and  a 
fixed  conception;  whereas  it  is  a  variable  conception,  and  is  in 


THE   MORAL   MOTIVE.  275 

large  measure  relevant  to  the  social  needs  of  the  time  licincr.  In 
an  article  on  "  The  Ethics  of  Kant,"  published  in  The  Fortnttfhtlif 
Review  for  July,  1888,  and  now  contained  in  the  third  vohime  of 
mj  Essays,  I  have  given  seven  authorities  in  support  of  the  con- 
clusion that  "  the  lovi-er races  of  men  maybe  said  to  be  deficient 
in  the  idea  of  right :  "  they  have  no  such  feeling  of  "  ought  "  as 
is  general  with  us,  and  where  it  exists  it  is  often  quite  otherwise 
directed.  Among  various  savage  peoples  the  dntij  of  blood- 
revenge  is  of  all  duties  the  most  sacred,  A  Fijian  slave-tribo 
"  said  it  was  their  duty  to  become  food  and  sacriQces  for  the 
chiefs  ;  "  and  Jackson  tells  of  a  Fijian  chief  who  was  thrown 
into  religious  frenzy  from  a  belief  that  the  god  was  angry  with 
him  for  not  killing  more  of  the  enemy.  Nor  is  it  among  tlio 
inferior  races  that  we  meet  with  conceptions  of  ^'ought"  utterlv 
different  from  those  which  Mr.  Davies  assumes  are  recognized 
by  men  as  of  supreme  authority.  Among  the  Riff  pii'ates  of 
the  Morocco  cofist,  the  greatest  insult  a  man  can  receive  is  to  bo 
told  that  his  father  died  in  his  bed — that  he  did  not  die  fighting 
while  engaged  in  robbery :  the  implication  being  that  he  oujht 
to  have  so  died.  Similarly  is  it  with  European  peoples  in 
respect  of  duels.  The  aggrieved  man  is  forced  by  a  strong  sense 
of  obligation  to  challenge  one  who  has  injiired  him  ;  and  the 
injurer  entertains  no  doubt  that  he  aright  to  accept  the  challenge 
— feels,  in  common  with  all  his  associates,  that  it  is  his  dnti/  to 
do  this  thing  which  is  condemned  by  the  creed  he  professes. 
And  in  the  German  Emperoi''s  recent  applause  of  duelling-clubs 
as  giving  to  the  youth  "  the  true  direction  of  his  life,"  we  see  a 
deliberate  advocacy  of  usages  utterly  at  variance  with  the 
nominally-accepted  principles  of  right  conduct. 

These  cases  show,  I  think,  that  the  conception  of  "ought"  is 
relevant,  partly  to  sentiments  predominant  in  the  individual, 
partly  to  the  feelings  and  ideas  instilled  during  education,  and 
partly  to  the  public  opinion  which  prevails  :  all  of  them  variable 
factors.  The  truth  is  that  every  desire,  seeking  as  it  does 
gratification,  carries  along  with  it  the  idea  that  its  gratification 
is  proper  or  right ;  aiid  when  it  is  a  powerful  desire  it  generates, 
when  it  is  denied,  the  idea  that  the  denial  is  wrong.  So  true 
is  this  that  a  feeling  which  prompted  a  wrong  action,  but  was 
effectually  resisted,  will,  in  some  cases,  afterwards  generate 
regret  that  the  act  prompted  was  not  committed  ;  while, 
conversely,  a  good  action  at  variance  with  the  hai)itual  bad 
actions  may  be  followed  by  repentance  :  instance  the  miser  who 
feels  sorry  that  he  was  betrayed  into  a  piece  of  generosity. 
Similarly  the  consciousness  of  "  ought,"  as  existing  among  men 
of  superior  types,  is  simply  the  voice  of  certain  governing  senti- 
ments developed  by  the  higher  forms  of  social  life,  which  are  in 
each  individual   endorsed  by  tx'ansmitted   beliefs  and  current 


276  APPENDIX   C. 

opinion — a  sanction  mncli  stronger  tlian  that  \Nliicli  any  of  tlie 
inferior  feelings  have. 

A  full  answer  to  the  question  put  by  Mr.  Davies,  presented  in 
a  different  and  much  more  elaborate  form,  has  been  already 
given  in  The  Data  of  Ethics.  In  the  chapter  entitled  "  The 
Psychological  View,"  and  more  especially  in  §§  42  —  46^ 
the  genesis  of  the  feeling  of  obligation  is  explained  at  con- 
siderable length. 

Perhaps  he  will  still  ask — Why,  having  the  feeling  of  obli- 
gation, should  a  man  yield  to  it  ?  If  so,  the  answer  is  of  the 
same  general  nature  as  that  which  may  be  given  to  the  question 
— Why,  having  an  appetite  for  food,  should  a  man  eat  ?  Though, 
in  the  normal  order,  a  man  eats  to  satisfy  hunger,  and  without 
definite  consciousness  of  remoter  ends,  yet,  if  you  demand  his 
justification,  he  replies  that,  as  conducive  to  health,  strength, 
and  ability  to  carry  on  life  and  do  his  work,  the  yielding  to  his 
appetite  is  needful.  And  similarly  one  who  performs  an  act 
which  his  sense  of  duty  prompts,  if  asked  for  his  reason,  may 
fitly  reply  that  though  he  yielded  to  the  feeling  without  thought 
of  distant  consequences,  yet  he  sees  that  the  distant  conse- 
quences of  such  conformity  are,  on  the  average  of  cases,  bene- 
ficial not  only  to  others  but  in  the  long  run  to  himself.  And 
here  let  me  I'cpeat  a  truth  which.  I  have  elsewhere  insisted  upon, 
that  just  as  food  is  rightly  taken  only  when  taken  to  appease 
hunger,  while  the  having  to  take  it  when  there  is  no  inclination 
implies  deranged  physical  state ;  so,  a  good  act  or  act  of  duty 
is  rightly  done  only  if  done  in  satisfaction  of  immediate  feeling, 
and  if  done  with  a  view  to  ultimate  results,  in  this  world  or 
another  world,  implies  an  imperfect  moral  state, 

[After  the  publication  of  the  first  edition  of  this  work,  I  re- 
ceived from  INIr.  Davies  a  letter  containing,  among  others,  the 
following  paragraph : 

"  Allow  me  to  demur  to  one  statement  you  make  in  the  Appen- 
dix on  the  moral  motive.  I  think  I,  for  one,  do  not  tacitly  assume 
that  the  conception  of  '  ought '  is  '  a  fixed  conception.'  I  hold 
that  the  notions  of  what  is  right  vary  with  the  variations,  and  ad- 
vance with  the  progess,  of  the  social  order." 

Hence  it  appears  that  in  a  further  respect  Mr.  Davies's  views 
and  my  own  diverge  in  a  smaller  degree  than  at  first  appeared.] 


APPENDIX    D. 

CONSCIENCE    IN    ANIMALS. 

Shortly  after  tlie  publication  in  The  Guardian  of  tlie  corre- 
spondence reproduced  in  the  precediiif^  Appendix,  I  received 
from  a  gentleman  residing  in  Devonshire  the  letter  which  I 
here  qaote  : — 

Dear  Sir— The  following  careful  observations  on  animals  other  than  man 
may  be  of  interest  to  you  as  supporting  your  idea  that  the  idea  of  '  duty  '  or 
'  ought '  (owe  it)  may  be  of  non-'  supernatural '  origin.  ['  Supernatural '  is 
used  in  usual  sense  without  committing  the  writer  to  any  oi^inion.] 

My  dog  has  an  aversion  to  injure  living  flesh  or  anytliing  that  is '  shaped.' 
He  will  not  bite  any  animal  except  under  tlie  r/rea^eif  provocation.  If  I  press 
a  sharp-pointed  pen-knife  against  the  skin  of  the  back,  he  seizes  my  wrist 
between  his  hind  teeth.  The  mechanical  advantage  is  such,  that  if  he  closed 
his  jaw  he  could  crush  flesh  and  bone.  But  no  matter  how  I  increase  or 
prolong  the  pressure  he  xcill  not  close  his  jaw  sufficiently  to  mark  the  flesh. 
I  have  repeated  this  and  simhar  experiments  many  times.  I  can't  find  how 
the  '  ought '  was  established.  It  is  not  hereditary.  The  father  was  a  good- 
tempered  '  fighting '  dog — the  mother  inost  vicious ;  but  I  never  allowed  her 
to  come  into  contact  with  the  pup  but  in  the  dusk,  in  order  to  avoid  imita- 
tion or  unconscious  education. 

Until  '  Punch  '  was  three  yrs.  old  I  never  knew  him  give  an  angry  growl. 
I  sat  down  on  his  tail,  doubling  it  under  me  accidentally  one  day,  when  I 
heard  a  growl  of  a  totally  dilferent  timbre  to  what  I  had  ever  before. 
The  odd  thing  was — when  I  rose  the  dog  begged  pardon  for  the  unusual  tone 
and  temper  in  a  way  that  could  not  be  mistaken.  Evidently  he  recognized 
his  own  violation  of  an  'ought'  existing  in  his  mind  (conscience). 

Further,  if  I  tease  him  with  a  rough  stick  he  seizes  it  and  crushes  it,  but 
if  with  my  crutch  (I  am  lame)  or  my  mahl  stick,  he  seizes  it ;  but  will  not  leave 
the  mark  of  his  teeth  in  anything  that  has  had  '  work '  done  on  it  to 
any  extent. 

The  '  ought '  may  be  established  as  an  obligation  to  a  higher  mind,  in 
opposition  to  the  promptings  of  the  strongest  feelings  of  the  animal,  eg. 

A  bitch  I  had  many  years  ago  showed  great  pleasure  at  the  attentions  of 
male  dogs,  when  in  season.  I  checked  her  repeatedly,  by  voice  only.  This 
Bet  up  the  '  ought '  so  thoroughly,  that  tho'  never  tied  up  at  such  time.?, 
she  died  a  virgin  at  13J  yrs.  old.*    By  the  time  she  was  4  she  resented 

•  At  least  I  have  no  cause  to  think  otherwise. — T.  M.  J. 


278  APPENDIX  D. 

strongly  any  attention  from  the  male,  and  by  seven  she  was  a  spiteful  old 
maid,  resenting  even  the  presence  of  the  males. 

Dogs  can  form  a  standard  of 'ought'  as  to  skill  or  powers  of  doing.  This 
bitch  was  a  powerful  swimmer.  A  young  smooth  Scotch  terrier  was  intro- 
duced into  the  house.  They  became  playfellows,  chasing  and  running  all  over 
the  grounds.  One  day  they  were  crossing  the  Prince's  Street  Ferry,  Bristol. 
The  bitch  sprang  from  the  ferry  boat  as  usual  into  the  water  and  the  young 
dog  followed ;  but  began  to  drown.  She  saw  his  efforts,  seized  him  by  the 
back  of  neck  and  swam  ashore  with  him.  A  few  seconds  after,  she  seized 
him  and  shook  him  violently  for  some  time.  Ever  after,  she  bit  or  shook 
him  if  he  attempted  to  play.  [Contempt  on  discovery  of  want  of  power  she 
apparently  regarded  before  as  normal  ?J 

Further,  '  indignation  '  is  not  confined  to  human  beings.  I  used  to  pretend 
to  beat  a  younger  sister  and  she  feigned  crying.  The  bitch  flew  at  me. 
Eeversing  the  conditions,  the  bitch  growled  and  finally  flew  at  my  sister. 
"We  tried  the  experiment  many  times  with  other  actors  and  same  results. 
Her  sympathies  were  always  on  the  side  of  the  persons  attacked,  unless  she 
bad  a  previous  dislike  to  them. 

Further  observation  showing  her  the  attacks  were  feigned,  she  often  joined 
in  them  with  uproarious  hilarity,  but  this  state  of  mind  did  not  arise  till 
after  repeated  observation. 

Pardon  these  records  of  observation  if  they  appear  trivial.  Unfortunately 
I  have  only  been  able  to  make  myself  acquainted  very  partially  with  your 
works,  and  such  facts  may  have  come  under  your  observation  to  a  greater 
extent  than  under  mine.  I  am  yours  obdtly., 

T.  Majin  Jones. 

Northam,  Devon, 
14/8/90. 

My  response,  thanting  Mr.  Jones  and  recognizing  tbe  value 
of  the  facts  set  forth  in  his  letter,  drew  from  him  a  second  letter, 
in  which  he  says  : — 

"Pray  make  what  use  you  like  of  the  letter,  but  it  is  only  right  to 
say  that  some  of  the  facts  are  in  the  possession  of  Prof.  Komanes.  You 
can  depend  upon  the  accuracy  of  the  observations — I  learned  to  observe 
from  the  Beltast  naturalists,  Pattison,  the  Thompsons  and  others — and 
I  trained  my  wife,  before  marriage,  to  help  me,  and  not  run  away  with 
mere  impressions. 

'  The  ]dea  of  '  ought '  is  abnormally  strong  in  Punch,  the  dog  I  spoke  of — 
his  tastes  too  are  unusual.  He  cares  more  for  sweets  than  meat.  When  he 
was  about  6  mouths  old  I  found  out  some  way  he  had  gained  the  meaning 
of  Yes  and  No.  I  have  hundreds  of  times  offered  him  a  knob  of  sugar — 
when  he  was  on  the  point  of  taking  it  said  No  !  He  draws  back.  If  he  has 
taken  it  in  his  mouth  a  ichispered  No  1  causes  him  to  drop  it.  If  he  is  lying 
down  and  I  place  sugar  all  round  whispering  No !  the  lumps  remain  untouched 
till  a  '  Yes  '  is  said.  But— but— but— the  dog  differs  from  the  human  being  I 
He  will  rarely  accept  a  first  Yes,  tho'  he  does  a  first  No  !  Experience  has 
taught  him  the  Y'es  may  ^e  followed  by  a  No !  and  he  waits  expectantly.  There 
is  no  eagerness  to  set  aside  the  '  ought '  when  an  excuse  offers.  (Special  probably, 
not  general  in  dogs.)  The  minds  of  dogs  discrimiiiate  heiivecn  great  and 
small  departures  from  their  standard  of  'ought.'  If  I  drojjped  a  fair- 
S'zed  piece  of  sugar,  neither  Fan  (the  bitch)  nor  Punch,  considered  they 
had  the  slightest  right  to  touch  it.  If  the  piece  were  very  small  both 
hesitated— and  if  No  1  were  not  said,  finally  ate  it.  I  have  tried  graduating 
the  lumps  to  find  out  where  the  '  ought '  came  in.    The  male  has  a  finer 


CONSCIENCE    IN   ANIIIALS.  279 

conscience  than  the  female,  I  need  hardly  say  I  carefully  avoided  loud  tones 
and  gesticulation. 

"  No  !  Oh !  So !  Go !  are  equivalents  to  a  dog's  ear,  but  the  sibilant 
must  be  very  soft.  So  also  'Yes,'  'bess,'  'press,'  but  they  recognize 
various  forms  of  expression  as  equivalent.  '  Yes,'  or  '  You  may  have  it,"  are 
same  value  to  Punch.  My  pony  is  nervously  anxious  to  obey  the 'ought.' 
Woh !  Halt !  Stop !  A'c,  are  of  equal  value.  The  dog  appears  to 
me  to  study  the  tnne  less  than  the  pony  and  to  pay  more  attention  to 
sound  and  its  qiiantiti/.  Many  of  the  acts  of  both  strike  me  as  possibly 
acts  of  '  worship '  in  its  simplest  form,  e.g.,  the  fact  I  tliink  I  mentioned  in 
my  letter,  of  the  dog's  anxiety  to  '  propitiate  '  on  the  occasion  of  his  first 
augry  growl,  when  three  years  old ;  though  I  had  not  recognized  the  '  ought ' 
iil  the  dog's  mind  nor  had  I  ever  punished  him." 

Along  with  this  letter  Mr.  Mann  Jones  inclosed  a  scries  of 
memoranda  which,  while  they  ai-e  highly  interesting  and 
instructive,  also  serve  to  show  how  carefully  and  critically  his 
inquiries  have  been  condncterl,  and  how  trustworthy,  therefore, 
are  his  conclusions.  With  the  omission  of  some  paragraphs, 
they  are  as  follows : — 

Eecopnition  of  duty  or  oiipht  in  a  bitch— deliberate  violation  of  the  principle 
recognized — simulation  of  indignation  at  the  ought  being  set  at  nought 
by  a  cat. 

Prior  to  '85  I  had  satisfied  myself  that  domestic  animals  recognized  duty. 
I  was  anxious,  however,  to  procure  as  thoroughly  degraded  an  animal  as  I 
could  to  test — 1st,  whether  the  '  ought '  might  not  proceed  from  two  very 
different  classes  of  motives,  which  I  had  been  accustomed  to  distinguish  as 
(A)  the  Eectal-moral  and  (B)  the  selfish  or  conventional-moral.  2ndly,  I 
wanted  to  test  whether  the  idea  set  forth  by  some  theologians  that  the  '  most 
noxious  animal  was  innocent,'  and  that  moral  responsibility  only  attached 
to  man,  was  true. 

I  observed  a  very  handsome  bitch  at  Mardock  station  repeatedly  driye  a 
large  number  of  fowls  belonging  to  the  station-master  off  the  line  and  plat- 
form so  soon  as  she  heard  the  distance  signal. 

I  asked  her  history  and  found  she  had  been  accidentally  left  by  a  lady 
travelling  in  a  first-class  carriage  some  months  before.  I  inferred  she  was 
likely  to  have  been  '  spoiled  '  and  as  she  was  evidently  aged,  she  would  not 
easily  lose  any  bad  habits.  Further,  I  asceilained  she  was  gluttonous, 
passionate,  yet  sulky,  lascivious,  a  coward,  not  fond  of  children,  without. any 
strong  attachments,  and  dirty  in  her  habits.  She  seemed  so  much  like  the 
worst  specimen  of  '  fallen  humanity '  the  putaine,  that  I  asked  but  one 
more  question  "  She  is  very  intelligent,  you  have  taught  her  to  clear  the 
station  at  proper  time  ?  "  "  She  is  very  sharp,  but  I  did  not  teach  her ;  she 
watched  the  boy  a  few  times  doing  the  work  and  then  took  it  as  her  duty. 
Now,  though  she  is  very  greedy,  if  we  are  late  in  the  morning,  she  come3 
without  her  breakfast  and  has  nothing  till  late  in  the  day  rather  than  not 
ctear  the  line."  This  trait  decided  mo.  I  thought  if  I  removed  lier  from 
the  station-master's  house,  she  would  drop  the  last  '  duty '  that  was  at  all 
unselfish,  and  be  thoroughly  '  bad-all-round.' 

I  took  her  home.  She  went  willinsly,  shewing  no  fright  and  making 
herself  at  home  on  reaching  my  house.  I  kept  her  in  a  house  and  an 
outhouse  24  hours,  feeding  her  well,  then  took  her  to  the  station  when  she 
showed  little  pleasure  at  seeing  her  master  and  little  inclination  for  the  old 
duty.     By  end  of  a  fortnight  she  took  no  notice  of  either. 

The  third  morning  the  stable-boy,  Ben,  came  to  me.     "  Sir,  Judy  i;i  mad. 


280 


APPENDIX    D. 


I  was  sweeping  near  hei'  over  2  hours  ago  and  stooped  to  pat  her.  She 
first  bit  my  hand  and  then  my  leg"  (both  wounds  bled)  "  and  she  has  sat  in 
the  corner,  with  her  back  crushed  into  it,  ever  since."  I  went  to  the  stable, 
spoke  kindly  to  her  and  then  stooped  to  pat  her.  She  snapt  viciously. 
Letting  the  muscles  of  the  hand  balance  so  that  the  finger  bones  and 
metacarpals  played  loose  on  each  other  and  the  wrist,  I  struck  her  heavily 
over  the  eyes.  She  snajot  again  and  I  struck  as  she  snapt.  The  contest 
continued  5  minutes,  when  I  left  her,  nearly  blind  eyed  and  tired.  I  asked 
Ben  two  hours  after  how  she  was.  "Oh!  I  think  she  f.?  mad.  She  is  as 
sulky  as  ever  and  sits  as  she  was  in  the  corner."  When  I  went  in,  she  came 
forward  and  fawned  upon  me.  From  that  day  I  never  struck  her.  She  was 
most  obedient,  good  tempered,  gentle  and  anxious  to  please  me.  To  a 
certain  extent  she  showed  the  same  character  to  my  wife  and  to  a  servant, 
the  cook,  who  was  very  decided,  but  to  the  boy  and  a  younger  servant  she 
showed  the  old  character  and  also  to  others.  In  fact  henceforth  she  lived  a 
double  life,  altering  her  apparent  character  the  moment  she  heard  my 
footstep.  I  saw  here  that  her  sense  of  duty  and  her  obedience  had  no 
ethical  value :  they  were  simply  effects  of  fear,  or,  in  some  degree,  hope  of 
gain.     They  formed  no  part  of  her  real  character. 

I  took  care  she  was  frequently  and  well  fed,  purposely  with  a  large  variety 
of  food.  I  therefore  left  no  motive  for  theft.  About  a  fortnight  after  I 
bought  her,  the  cook  came  to  my  wife — "  Ma'm,  I  am  constantly  missing 
things  off  the  kitchen  table.  Either  one  of  the  cats  has  turned  thief  or 
Judy  takes  the  things,  yet  I  can't  tell  how  she  gf-ts  at  them.  I  don't  leave  a 
chair  near  enough  the  table  for  her  to  use  ■ —  besides  she  is  so  stiff  and  long- 
backed  that  if  she  tries  to  get  on  the  chair  she  slips  over  the  other  side." 

I  give  a  diagram  of  kitchen  and  surroundings  to  make  clear  what  follows. 
I    caused  a    number   of 

articles  of  food  brought  Garden 

out  of   dining   room,  to 

be  placed  on  the  table :  ^  ^ 

the  chair  being  put  too  " 

far  off  for  use.  Sending 
some  of  the  family  iu 
tiie  dining  room  with 
injunctions  to  keep  still 
till  I  called  I  left  the 
two  cats  and  Judy  at 
their  plate,  /.  I  then 
■went  into  the  garden  but 
returned  quietly  to  win- 
dow h,  which  had  a 
coloured  muslin  half- 
blind  that  hid  me  from 
observation.  As  soon  as 
all  was  quiet  Judy  left 
her  dinner,  went  to  door 
d,  apparently  listened 
intently  and  looked  re- 
peatedly up  and  down 
passage.  She  then  went 
to  X  and  reared  herself  on  her  hind  legs,  walking  along  so  as  to  see  the  whole 
surface  of  table  and  going  backward  so  as  to  get  better  view.  She  then  went 
to  one  of  the  cats  and  hustled  her  to  the  chair.  The  cat  at  length  under- 
stood Judy,  jumped  on  chair,  thence  on  to  table  and  dragged  a  meat  bone 
down  to  /.  Judy  shook  her — took  the  bone  and  began  to  pick  it.  I  gave 
the   signal  and  a  light-footed  girl  ran  into  the  kitchen.     As  soon  as  Judy 

\ 


D 


Table 


□ 
c/l.7 


J^x^^/^4^ 


fo 


□ 


□ 


to  dining  room 


CONSCIENCE  IN  ANIMALS.  281 

heard  the  footsteps,  which  was  not  till  the  gii-1  got  to  the  door,  sheflao  at  the 
cat  with  a  growl  and  worried  her  and  finally  chased  her  through  a  hedge 

200  feet  of. 

I  saw  the  whole  of  this  drama  enacted  on  two  occasions — parts  on  several ; 
others  saw  parts  many  times.  The  same  caution  to  ascertain  the  '  coast 
was  clear,'  the  same  employment  of  one  or  other  of  the  cats  and  the  same 
feigned  indignation  and  attempt  by  gestm'e  to  fix  the  theft  on  the  cat, 
occurred  every  time. 

I  don't  thinlc  I  am  wrong  in  concluding  that  Judy  recognized  that  the  cat 
had  no  right  to  get  on  the  table  after  the  food ;  that  she  was  instigating 
breach  of  duty,  and  that  she  simulated  anger  in  order  to  shift  responsibility 
which  her  mind  acknowledged. 

Space  and  time  prevent  my  giving  many  more  illustrations  of  her  character. 
She  was  an  extreme  type,  but  I  have  had  otlicr  animals  like  her,  who 
recognized  duty  and  "moral  obligation"  to  a  greater  or  less  extent  as 
something  expected  of  them  by  a  superior,  but  whicli  they  performed  entirely 
from  hopes  of  reward  or  fear  of  punishment  generally,  occasionally  from 
liking  (which  was  not  sympathy)  but  that  form  arising  from  the  object 
giving  pleasm-e  or  profit  to  the  subject  so  '  liking.'  The  idea  of  duty, 
justice,  'ought,'  in  all  such  cases  arose  from  selfishness.  I  class  them  as 
'  selfish-moral,'  conventional-moral,  fashion-moral  acts  of  duty,  or  shoxily 
as  'Judyism.' 

I  now  proceed  briefly  to  consider  the  '  sense  of  duty '  or  '  ought '  in 
another  of  my  teachers — the  dog  Punch.  I  have  given  details  before  but 
briefly.  He  wills  not  to  injure  any  living  thing,  nor  anything  that  shows  by 
its  shape  that  work  has  been  expended  upon  it.  The  most  striking  instance 
is  that  I  have  repeatedly  purposely  caused  him  severe  and  long  continued 
pain  by  pressing  upon  and  even  cutting  the  sub-cutaneous  loops  of  the  nerves 
without  ever  being  able  to  induce  him  to  bite  me  or  even  snap  at  me.  In  the 
same  way,  when  bitten  by  dogs,  often  severely,  he  will  not  bite  them.  There 
appears  to  me  to  be  here  a  '  sense  of  duty,'  or  of  '  ought,'  which  is  speci- 
fically different  from  all  those  varieties  I  have  styled  Judyism. 

I  ask  why  does  he  not  bite  ? 

It  may  be  said  he  is  afraid  of  you.  I  think  that  if  anyone  saw  the  rela- 
tions between  us  they  would  soon  dismiss  this  as  the  motive.  I  appreciate 
him  too  much  as  a  valuable  '  subject'  to  make  the  blunder  of  inspiring  fear. 
I  would  as  soon  think  of  doing  so  as  the  electrician  would  think  of  using  his 
most  sensitive  electroscope  roughly.  The  dog  and  his  pupil  are  so  en  rapport 
that  if  the  former  wants  a  door  oi3ened,  or  a  thorn  or  insect  removed,  he  comes 
to  me,  say  I  am  at  my  desk,  stands  up,  puts  his  riglit  paw  on  my  arm  and 
taps  my  shoulder  with  the  left  repeatedly  till  I  attend  to  him,  when  he  clearly 
indicates  what  he  wants,  and  if  the  want  is  to  have  thorn  or  insect  removed 
he  clearly  indicates  the  surface,  often  to  a  square  inch  or  nearer. 

It  may  be  urged  that  he  will  not  hurt  me  because  he  has  such  trust  or  faith 
in  me — he  thinks  I  would  not  willingly  hurt  him.  There  appears  something 
in  this  at  first  sight,  and  it  gains  colour  from  the  fact  that  when  he  was  less 
than  12  months  old,  a  gamekeeper  shot  at  him  when  near,  and  deposited 
about  30  pellets  of  shot  in  his  head  and  body,  which  I  extracted.  The 
memory  of  these  operations  might  lead  him  to  class  my  pressure  of  the  knife 
point  as  something  curative. 

But  then,  where  does  such  an  explanation  come  in,  in  his  behaviour  to  my 
tnahl  stick,  which  he  will  not  break  under  the  same  circumstances  that  cause 
him  to  crush  an  unshaped  stick  to  splinters  ?  It  may  be  said  that  when 
bitten  by  another  dog,  he  does  not  retaliate  because  he  is  a  coward.  The 
explanation  won't  do.  He  barks  remonstratively,  as  he  does  when  I  hurt  him 
I  when  we  are  romping,  but  he  won't  run  away.  I  can't  get  liim  away  often, 
!  and  he  is  frequently  bitten  more  severely  in  consequence.     An  incident  that 

13 


282  APPENDIX    D. 

occurred  a  few  days  back  threw  some  more  light  on  the  idea  of  '  right '  in 
Punch's  (or  Monkey's)  mind — he  answers  indifferently  to  both  names.  I 
was  coming  through  the  very  narrow  street  of  West  Appledore  when  a  much 
larger  dog  seized  him,  and  bit  Punch  so  severely  about  the  face  as  to  make 
him  bleed.  Punch  then  resisted  for  the  first  time,  to  my  kuov/ledge,  not  by 
biting,  but  by  a  Quaker-like  defence  that  was  most  scientific.  He  seized  the 
other  dog  firmly  by  the  hind  leg  above  the  heel,  and  raised  the  leg  so  high 
off  the  ground  as  to  throw  the  dog's  body  into  unstable  equilibrium.  The 
dog  stood  still  for  some  time,  evidently  afraid  to  move  for  fear  of  falling 
on  his  back  and  being  at  the  mercy  of  his  opponent.  He  was  in  no  pain,  for 
Punch  was  not  biting  but  simply  holding  firmly.  At  length  the  attacking 
dog  tried  to  get  his  head  round  to  bite  Punch  again,  but  the  latter  frustrated 
this  by  lifting  the  leg  higher  and  carrying  it  gradually  round  in  the  opposite 
direction  to  the  dog's  head,  so  as  to  preserve  the  original  distance.  At  the 
end  of  about  2  minutes  I  was  compelled  to  interfere,  as  a  horse  and  cart 
were  coming  close.  The  dog  slank  off  whilst  Punch  jumped  vertically,  bound- 
ing many  times  off  the  ground  in  a  manner  that  I  can  only  compare  with 
the  bounding  of  a  football,  barking  merrily  at  the  same  time. 

Hundreds  of  similar  instances  to  the  few  I  have  given,  convince  me 
that  this  dog  has  in  his  mind  a  sense  of  duty  totally  different  in  Idnd 
from  that  which  I  have  illustrated  and  characterized  as  Ji(rf!/('s?n.  It  is  in 
fact  "Do-as-you-would-be-done-by-ism."  I  have  observed  this  species  of 
sense  of  duty,  of  the  '  ought '  (or  morality)  in  a  number  of  animals,  and  I 
have  become  accustomed  to  call  this  kind  'Eectal  sense  of  duty  '  and  hence 
to  divide  'morality'  into  seZ/tsft,  emotional,  clique,  '  fashion '  morality,  or 
Judyism,  and  Piectal  morality. 

I  never  met  with  two  such  extreme  types  of  the  dominance  of  the  two  kinds 
of  motive  before.  Most  animals  are  actuated  by  the  two  species  of  sense  of 
duty  in  varying  ratio,  many  only  by  selfish  or  Fashion-morality;  but  some 
individuals  appear  affected  little  by  either.  These  form  the  utterly '  immoral.' 
So  far  as  my  inductions  from  observations  of  animals  go,  the  division  into 
Eectal  and  conventional  '  sense  of  duty '  is  exhaustive  and  inclusive.  Ail 
acts  that  recognize  an  '  ought '  appear  to  me  to  come  under  one  or  the  other. 

There  is  a  remarkable  difference  in  the  animal  according  to  which  sense 
of  duty  is  predominant — which  species  of  morality  rules  its  life.  If  Rectal, 
the  animal  is  trustworthy  and  reliable.  If  conventional,  untrustworthy, 
changeable  and  shifty.  So  much  for  results  in  outward  conduct.  I  appre- 
hend that  the  results  on  the  mind  or  ethical  sense,  of  conventional  morality 
is  on  the  whole  disintegrating.  In  fact  I  have  observed  this  in  animals, 
though  I  have  noi  been  able  to  pursue  my  observations  so  far  as  I  could  wish.* 

On  the  other  hand,  the  Eectal  sense  of  duty  in  animals  is,  in  the  phrase- 
ology of  the  philosopher,  a  developing  force.  The  Eectal  morality  of  the 
animal  increases  with  time.  In  the  phraseology  of  some  theologians  it  may 
perhaps  be  termed  a  regenerating  or  '  saving '  force.  (Those  who  believe 
that  a  profession  of  a  creed  is  the  only  saving  force,  would  scarcely  admit  it 
had  more  value  than  the  conventional  '  ought,'  or  perhaps  not  as  much  in 
some  cases.) 

As  to  the  origin  of  the  Eectal  sense  of  duty  or  rectal  morality,  so  far  as  my 
observations  go,  the  chief  thing  I  can  predicate  is  that  it  is  unselfish. 
It  seems  to  be  closely  connected  with  '  sympathy,'  as  distinguished  from 
'  feeling '  of  the  kind  before  defined.  The  individuals  among  the  higher 
animals  who  act  from  the  rectal  sense  of  duty  appear  to  be  remarkable,  so 
far  as  my  observations  go,  for  ability  to  "  put-yourself-in-his-place-edness  " 

*  Query  ?  I  take  it  the  '  rectal '  sense  of  duty  is  at  the  base  of  all  reality 
of  character,  the  conventional  has  more  the  character  of  an  acquired 
mental  habit. 


CONSCIENCE  IN  ANIMALS.  283 

which  is  at  the  root  of  true  •  sympathy.'  The  tendency  is  always  "  to  do 
as  they  would  be  done  by."  In  most  cases  that  I  have  observed  itappeared 
to  be  inborn,  but  developed  as  the  animal  got  older. 

The  division  I  have  been  led  to,  by  hundreds  of  observations  on  individuals 
of  dil!erent  species,  of  the  '  Idea  of  duty,'  and  consequently  all  morality, 
into  Rectal  and  conventional  (mores)  I  have  never  seen  formulated.  Probably 
other  observers  have  made  the  distinction.  It  is  tacitly  recognized,  however, 
in  most  of  the  oldest  writings  I  know  anything  of.  The  recognition  of  the 
value  of  theEectal  appears  to  me  to  run  through  many  of  the  books  collected 
as  the  Bible,  and  the  O.  T.  and  N.  T.  Apocrypha,  like  a  vein  of  gold  in 
quartz,  and  to  be  the  yexj protagon  or  '  nerve-centre  stuft" '  of  most  of  Christ's 
teaching.  I  have  seen  the  distinction  tacitly  admitted  in  many  theological 
•works,  tho'  I  think  I  am  right  in  asserting  (I  say  it  as  the  oratorians  speak, 
— under  correction)  there  is  a  want  of  recognition  of  the  fact  that  tlie  chief 
(if  not  only)  value  of  the  conventional  '  sense  of  duty,'  or  selfibh  '  ought,'  is 
to  prevent  friction. 

Not  only  do  animals  {other  than  man)  act  upon  the  "  ought  "  in  their  minds, 
but  some  of  the  more  intelligent  act  as  if  they  expected  or  believed  that 
it  existed  in  the  minds  of  some  men. 

In  August  '86  I  was  driving  Prince  (my  pony)  and  at  the  same  time 
discussing  an  interesting  point  in  science  with  my  wife.  I  generally  guided 
him  entirely  by  the  voice,  but  in  the  heat  of  the  argument  unthinkingly 
emphasized  my  points  with  the  whip  (which  had  had  a  new  knotted  lash  on 
that  day)  on  the  pony's  flanks.  He  stopped  about  the  third  blow  and  looked 
round.  This  attracted  my  wife's  attention — '  Prince  is  remonstrating  ' : 
•  You  struck  hea%-ily.'  Later  on  I  must  have  struck  him  repeatedly.  When 
he  was  loosed  from  the  harness,  I  was  standing  out  of  his  direct  line  to  the 
stable-door.  Instead  of  going  to  the  stable,  as  was  usual,  he  walked  up  to 
me,  and  after  repeated  attempts  to  draw  my  attention,  touched  me  with  his 
nose  and  then  approached  his  nose  as  closely  as  he  could  to  the  wales.  This 
he  repeated  until  I  had  the  places  bathed. 

About  two  months  later,  on  a  sinailar  occasion,  he  repeated  the  same 
actions. 

In  autumn  '86  I  was  in  Ware  with  my  pony.  Coming  out  of  a  shop,  I 
was  on  the  point  of  stepping  into  tiie  carriage  when  I  noticed  the  pony 
(Prince)  watching  me.  (He  was  accustomed  to  my  boy  jumping  up  when 
the  vehicle  was  in  motion.)  I  told  my  wife  to  start  him.  She  tried  repeatedly, 
but  he  would  not  move  till  he  saw  I  was  seated,  when  he  started  at  once. 
(The  experiment  was  repeated  many  times  subsequently.)  The  strange  thing 
is  the  complicated  train  of  thought  that  evolved  an  '  ought '  differing  in  the 
case  of  a  lame  man  from  the  duty  in  other  cases. 

The  same  autumn,  we  were  driving  from  Wearside  to  Hadham.  On  the 
road  we  met  with  a  group  of  children  with  two  perambulators.  They  were 
in  awkward  positions  :  several  children  being  close  to  tJie  left  hand  hedge,  a 
perambulator  and  children  further  to  right,  the  second  further  still,  as  in 
diagram :  the  distance  between  c.  pi,  p^  and  right  hedge  being  about  equal. 
There  was  room  to  pass  between  pi  and  p^  easily,  but  the  children  were 
confused  and  passed  repeatedly  between  the  two  points.  My  wife  said— 
C  "See  if     Prince    will 

. _. avoid  the  children."  I 

Ad  dropped  the   reins  on 

2  ,'  ■^     his  neck.    He  went  on 

^  ^  .•'  at    a    smart    trot    till 

7  or  8  yards  from  the 


children  at  a,  when  he  fell  into  a  walk,  turned  to  the  right,  and  passed  them 


284  APPENDIX   D. 

•with  the  right  wheel  near  the  hedge,  turnmg  his  head  more  and  more  to  see 
whether  he  was  clearing  the  right  or  outer  perambulator.  He  left  it  about 
3  yds.  in  the  rear,  and  then  returned  sharply  to  the  left  side  of  road  and 
resumed  his  trot  without  any  intimation  ne  was  to  do  so. 

In  Nov.  '87,  after  the  death  of  my  wife,  a  relative  came  to  live  with 
me  and  she  drove  the  same  pony.  She  is  so  deaf,  she  cannot  hear  a  vehicle 
overtaking  her.  Consequently  I  always  went  with  her,  and  if  she  had  the 
reins,  signed  with  my  lelt  hand  if  a  vehicle  were  coming  up  behind,  for  her 
to  draw  over  to  left. 

As  she  was  driving  one  day  up  a  steep  hill  (therefore  with  slack  reins)  on 
road  to  Ware,  I  heard  a  brewer's  cart  coming  behind.  The  man  had  been 
drinking  and  followed  close  in  our  wake,  though  there  was  plenty  of  room  to 
pass  if  he  had  kept  well  to  the  right.  I  gave  my  relative  no  signal,  as  I  wanted 
to  observe  the  pony's  actions.  He  appeared  nervous  and  restless,  turning  his 
head  as  far  as  he  could  to  the  right  to  see  what  was  wrong.  The  man  drove  the 
heavy  cart  ^ery  close  behind  but  the  pony  could  not  see  the  horse  or 
vehicle.  After  3  or  4  minutes  anxiety  (I  use  the  word  advisedly  :  the  working 
of  the  ears  and  the  '  twitching '  of  his  muscles  justifies  me),  receiving  no 
sign,  he  deliberately  drew  as  closely  as  possible  into  the  left-hand  hedge 
and  waited.     As  soon  as  the  waggon  passed,  he  went  off  at  a  brisk  trot. 

After  many  experiments  on  different  days  I  found  that  if  I  were  driving 
and  a  vehicle  overtook  us,  Prince  waited  for  me  to  tighten  the  left  rein,  but 
if  my  relative  were  driving,  he  decided  by  the  sound  when  to  draw  to  the  left. 
Even  if  she  tightened  the  right  rein — he  disobeyed  the  sign.  After  many 
experiments  I  had  full  confidence  he  would  always  act,  if  she  were  driving,  on 
the  evidence  of  his  own  hearing ;  and  she  often  subseejuently  drove  without 
me,  the  pony  evidently  recognizing  his  new  duties. 

Examples  of  animals  {other  tJmnmen)  initiating  co-operationin  diitij.    [Simul- 
taneous occurrence  of  the  idea  of  duty,  suggested  by  savie  circumstances.'] 

In  the  autumn  of  18S6,  I  started  after  10  o'clock  p.m.  from  my  cottage  at 
Baker's  End  to  drive  some  friends  homeward.  On  descending  from  the  high 
ground,  I  passed  into  a  dense  fog,  which  the  carriage  lights  failed  to 
penetrate  6  feet— the  fog  reflected  the  light  like  a  wall.  Some  distance 
past  the  Mardock  Station  road,  my  road  turned  almost  at  right  angles. 
Here  we  so  thoroughly  failed  to  find  the  turning  that  the  horse  was  driven 
asainst  the  bank,  up  which  he  reared  crashing  into  the  hedge  at  the  top.  We 
all  alighted  and  my  friends  went  on.  I  turned  pony  and  carriage  and  got 
in,  to  drive  back  :  the  pony  moved  slovv^ly,  but  almost  dragging  the  reins  out  of 
my  hands.  I  got  out  thinking  the  reins  v/ere  caught  on  the  shaft  as  the  pony 
had  always  shown  a  liking  for  a  very  tight  rein  down  hill  and  our  road  here 
was  a  descent.  I  could  find  nothing  Vv-rong  with  the  reins.  Taking  out  a  lamp 
I  went  to  the  pony's  head,  which  he  was  still  holding  as  low  as  he  could. 
Then  I  saw  his  nose  was  nearly  on  the  back  of  my  black  dog  Jack  (the  father 
of  Punch)  who  was  standing  in  front  with  his  nose  near  the  ground,  but 
pointing  homeward.  I  got  in  ;  said  '  Go  on ; '  did  not  use  the  reins,  but  as  we 
went  at  a  walking-pace,  tried  frequently  to  measure  with  the  whip  handle 
the  distances  they  kept  from  each  hedge.  Tliey  took  me  safely  into  the 
yard  behind  my  house,  and  my  measurements  showed  they  kept  the  middle 
of  the  road  the  whole  way ;  except  at  one  place,  where  there  is  a  deep  gully 
on  the  right,  separated  from  the  road  by  a  very  slight  fence.  Here  they  kept 
within  18  inches  of  the  left  (or  further  side  from  the  gully).  Altho'  the 
night  was  cold  and  the  pace  that  of  the  Dead  March,  the  horse  was  wet 
with  perspiration  and  the  dog  panting  with  tongue  out  when  we  got  into  the 
yard,  probably  from  the  anxiety  to  do  the  duty  they  had  undertaken.  There 
are  6  turns  in  the  road  and  three  of  them  are  right  angles,  narrow  in  all 


CONSCIENCE    IN   ANIMALS.  285 

cases,  but  not  more  than  the  full  length  of  horse  and  carriage,  in  two  cases 
I  think,  and  my  memory  is  pretty  clear. 

There  was  a  little  episode  '.vhen  we  got  into  the  yard,  illustrating  the  close 
analogy  between  the  feelings  of  these  animals  and  human  feelings  under 
similar  circumstances.  The  horse  rubbed  his  head  repeatedly  against  Jack, 
whilst  Jack  '  nosed '  or  rubbed  his  face  against  the  pony's.  No  expression  of 
mutual  gratulation  on  the  completion  of  a  self-imposed  duty  could  have  been 
more  significant. 

There  is  an  interesting  parallelism  between  tlie  conclusions 
drawn  by  Mr.  Jones  from  liis  observations  on  the  motives  of 
animals  and  the  conclusions  concerning  human  motives 
contained  in  Chap.  lY,  "The  Sentiment  of  Justice."  The 
distinction  between  "rectal-moral  "  and  "  conventional-moral  " 
made  by  him,  obviously  corresponds  with  the  distinction  made 
in  that  chapter  between  the  altruistic  sentiment  and  the  pro- 
altruistic  sentiment.  This  correspondence  is  the  more  note- 
worthy because  it  tends  to  justify  the  belief  in  a  natural 
genesis  of  a  developed  moral  sentiment  in  the  one  case  as  in 
the  other.  If  in  inferior  animals  the  consciousness  of  duty  may 
be  produced  by  the  discipline  of  life,  then,  a  forliui-i,  it  may  be  so 
produced  in  mankind. 

Probably  many  readers  will  remark  that  the  anecdotes  Mr. 
Jones  gives,  recall  the  common  saying — "Man  is  the  god  of 
the  dog ;  "  and  prove  that  the  sentiment  of  duty  developed  in 
the  dog  arises  out  of  his  personal  relation  to  his  master,  just  as 
the  sentiment  of  duty  in  man  arises  out  of  his  relation  to  his 
maker.  There  is  good  ground  for  this  interpretation  in  respect 
of  those  actions  of  dogs  which  Mr.  Jones  distinguishes  as 
"conventional-moral;"  but  it  does  not  hold  of  those  which 
he  distinguishes  as  "  rectal-moral."  Especially  in  the  case  of 
the  dog  which  would  not  bite  Avhen  bitten,  but  contented 
himself  with  preventing  his  antagonist  from  biting  again 
(showing  a  literally-Christian  feeling  not  shown  by  one 
Christian  in  a  thousand)  the  act  was  not  prompted  by 
dutifulness  to  a  superior.  And  this  extreme  case  verifies  the 
inference  otherwise  drawn,  that  the  sentiment  of  duty  was 
independent  of  the  sentiment  of  subordination. 

But  even  were  it  true  that  such  sentiment  of  duty  as  may 
exist  in  the  relatively-undeveloped  minds  of  the  higlier 
animals,  is  exclusively  generated  by  personal  relation  to  a 
superior,  it  w^ould  not  follow  that  in  the  much-more-developed 
minds  of  men,  there  cannot  be  generated  a  sentiment  of  duty 
which  is  independent  of  personal  relation  to  a  superior.  For 
experience  shows  that,  in  the  wider  intelligence  of  the  human 
being,  apart  from  the  pleasing  of  God  as  a  motive,  there  may 
arise  the  beneOting  of  fellow-men  as  a  motive  ;  and  that  the 
sentiment  of  duty  may  come  to  be  associated  with  the  last  as 


286  APPENDIX    D. 

with  the  first.  Beyond  question  there  are  many  who  are 
constrained  by  their  natures  to  devote  their  energies  to 
philanthi'opic  ends,  and  do  this  without  any  regard  for  personal 
benefit.  Indeed  there  are  here  and  there  men  who  would 
consider  themselves  insulted  if  told  that  what  they  did  was 
done  with  the  view  of  obtaining  divine  favoiu". 


EEFERENCES. 


To  find  the  authority  for  any  statement  in  tlie  text,  the  reader  is  to 
proceed  as  follows  : — Observing  the  number  of  the  section  in  which 
the  statement  occurs,  he  will  first  look  out,  in  the  following  pages, 
the  corresponding  number,  which  is  printed  in  conspicuous  type. 
Among  the  references  succeeding  this  number,  he  will  then  look 
for  the  name  of  the  tribe,  people,  or  nation  concerning  which  the 
statement  is  made  (the  names  in  the  references  standing  in  the 
same  order  as  that  which  they  have  in  the  text)  ;  and  that  it  may 
more  readily  catch  the  eye,  each  such  name  is  printed  in  Italics.  In 
the  parenthesis  following  the  name,  will  be  found  the  volume  and  page 
of  the  work  referred  to,  preceded  by  the  first  three  or  four  letters  of 
the  author's  name;  and  where  more  than  one  of  his  works  has  been 
used,  the  first  three  or  four  letters  of  the  title  of  the  one  containing  the 
particular  statement.  The  meanings  of  these  abbreviations,  employed 
to  save  the  space  that  would  be  occupied  by  frequent  repetitions  of 
full  titles,  is  shown  at  the  end  of  the  references  ;  where  will  be  found 
arranged  in  alphabetical  order,  these  initial  syllables  of  authors' 
names,  &c.,  and  opposite  to  them  the  full  titles  of  the  works 
referred  to. 


EEFEEEXCES  TO  PAET  IV. 


§  g  Cbnmarrons  (Osw.  &1)— Wolves  (Eom.  430).  §  9.  Beavers  (Dal.  in 
C.  N.  H.  iii,  9d)—Crotvs  and  Rooks  (Rom.  323-5).  §  10.  Bisons  (Rom. 
3Z4.-5)— Elephants  (Rom.  iOO-l)—Monke7js  (Gill.  1701.  §  14.  Abnrs  (Dalt. 
in  J.  A.  S.  B.  xiv,  426).  §  23.  Dogribs  (Lub.  rjO'J)—Fucfjians  (Wed.  17o) 
—  Greeks  (Pla.  Jew.  229).  §  24.  Communists  (Lav.  in  Contemporary  lleview, 
Feb.    1S90 ;    Bel.    101).  §  26.    Germany     (Daily  Papers,    Feb.    1890). 

§  31  Lepchas  (Camp,  in  J.  E.  S.  L,  July,  18G9)— //os  (Dalt.  20i;)— Wood- 
Vedd'ah  (Tenn.  ii,  4U)—Kant  (Ka.  54-5).  §  32.  Austin  (Aust.  30). 
§  34  Benthamism  (Mill.  93  ;  Bel.  in  Cont.  Bev.,  July,  1890).  §  40.  Fijiaua 
(Will."  i,  112)  —  Wends  (Grimm.  A88}  —  Ilrrulinns  (Grimm.  487)  —  Greeks 
(Gro.  ii,  33)— J^Hropeans  (Gri.  289  ;  Green,  13)— Enylish  (Stcph.  ii,  204,  209). 
§  41  Early  Germans,  dx.  (Mai.  370i— ^7ic.  Russia  (Holtz.  i,  225-t;) 
§  45'  ^&ors  (Dalt.  in  J.  A.  S.  B.  xiv,  42G)  —  NajfU!  (Stew,  in  J.  A.  S.  B. 
XXIV,  (>Q8)— Lepchas  (Camp,  in  J.  E.  S.  L.  July,  lQm]—Jakum  (Fav.  in 
J.  I.  A.  ii).  §  46  Fijians  (Ersk.  492j-  Hebrews  (Ex.  xxi ;  Dcut.  xv ; 
Lev.  XXV.  45,  46)  —  Christians  (1  Cor.  vii,  21)  —  Greeks  (Gro.  ii,  37,  4GS-U) 
—Spartans  (Gro.  ii,  SO'd)—Enr,lish  (Green,  56,  91,  90,  2-i7)—Artizans  i^lart.  i, 
343).       §  52    Suanetians  (Fresh,  in  T.  R.  G.  S.  June,   1888,   p.  335)  — 


288  EEFERENCES. 

Bahmnans  (Bnrt.  i,  2G0).  §  54.  LocU  (Sec.  Treat,  on  Gov.  §  27)— 
Comanches  (Scho.  i,  23'2) — Cliippcwayans  (Scho.  v,  177) — Irish  (Green,  431) — 
China  (Wil.  i,  l-2)~India  (Lav.  310,  etc.).  §  55.  Maine  (Mai.  184). 
§  60.  Romans  (Cop.  2) — English  (Kob.  in  Ency.  Brit.  art.  "Copyright"). 
§  61.  Monopolies  (Had.  489).  §  62.  Roman  Laic  (Pat.  154-5)— Buddhists 
(Pat.  181,  note)— English  (Pat.  53).  §  63.  English  (13  Eliz.  c.  5 ;  29  Eliz. 
c.  6).  §  64.  Folynesians  (Ell.  P.  E.  ii,  34G ;  Tiio.  i,  dQ)— Sumatra  (Mars. 
2U)— Hottentots  (Kolb.  i,  300)— Dawiaj-as  (And.  228)— GoM  Coast  (J.  E.  S. 
(1856)  IV,  20)— Congo  (Proy.  in  Pink,  xvi,  571)—Eghas  (Burt.  Abeokuta, 
i,  208)— Timhuctoo  (Shab.  18)— ^sftajit/s  (Bee.  m)—Arahs  (Burck.  i,  131)— 
Todas  (Mar.  206)— GoicZs  (His.  12*)— Uorfo  and  Dhimals  (Hodg.  in  J.  A.  S.  B. 
xviii,  718) — Kasias  (Hook  ii,  275) — Karens  (Mas.  in  J.  A.  S.  B.  xxxvii.  pt.  ii, 
142) — Mishmis  (Grif.  35) — Primitive  Germans  (Tac.  Germ,  xx) — Celts  (Bello, 
iii,  398) — Saxons  and  Frisians  (Kijnig.  152-3) — Merovingians  (Konig.  158-60) 
—France  (Civil  Code,  §  967,  etc.).  §  69.  Poh/nesians  (U.  S.  Ex.  Ex.  iii, 
22 ;  Ang.  ii,  50 ;  Ell.  Hawaii,  390 ;  St.  John,  ii,  269  —  Bechuanan 
(Burch.  ii,  ^^o)  —  Inland  Negroes  (Laud,  i,  250)  —Ashantis  (Bee.  148)— 
Shoa  (Harr.  ii,  26)  —  Congo  (Proy.  in  Pink,  xvi,  578)  —  Dahomans  (Burt. 
Miss,  i,  52)  —  Fnlahs  (Wint.  i,  170)  —  Hebreios  (Deut.  xxii,  8,  etc.)  — 
Fhce.nicians  (Mov.  ii,  lOS-110)— Mexicans  (Zur.  223)— Ce?!f.  Americans  (Xim. 
203;  Pala.  84  ;  Sqi.  ii,  ^4:\)—Fatagonians  (Eitz.  ii,  150)— Mundrucus  (Bates, 
21i)  — Diocletian  (Lev.  i,  82-3).  §  70.  Hebrcics  (Deut.  xxiii,  19-20)— 
Cicero  (Am.  50) — England  (Ree.  iii,  292 ;  Steph.  Comm.  ii,  90)  France  (Lee. 
Rationalism,  293-4).  §  72  England  (Cunn.  200;  Thor.  i,  118;  Craik,  i, 
108-9  ;  Rog.  i,  575 ;  Ree.  iii.  262,  590 ;  Pict.  Hist,  ii,  809,  812,  viii,  635)— 
France  (Tocque.  427 ;  L^v.  iii,  286).  §  74,  Guinea  (Bast,  iii,  225)— 

Fijians  (hub.  357;  Ersk.  450;  Will,  i,  121)— Gr(?e7vs  (Plato:  Laws,  bk.  x; 
Smith,  Class.  Diet.  714  ;  Ency.  Brit,  ii,  1).  §  78.  Henry  IV.  (Green,  258) 
—Nonconformists  (Green,  60d-lS)— Athenians  (Pat.  l(j)— Romans  (Pat.  77)— 
English  (Pat.  79,  94)— PZafo  (Pat.  50)— English  (Pat.  50-1).  §  90.  Fijians 
(Will,  i,  210)  —  Fuegians  (Voy.  Adv.  &  Bea.  ii,  2)  —  Australians  (Trans. 
Eth.  Soc.  N.S.  iii,  248,  288)— Egyptians  (Ebers.  i,  B07-8)— Aryans  (Tac, 
Germ,  xviii) — Prim.  Germans  (Gri.  450)— Early  Teutons  (Mai.  153)— Old 
English  (Lapp,  ii,  338-9)— Romans  (Hunt.  32-3)— Fulc  the  Black  (Green,  95). 
§  95.  Greeks  and  Romans  (Lee.  ii,  26) — Teutons  and  Celts  (Gri.  455,  etc.) 
Fuegians  (Eitz.  ii,  171) — New  Guinea  (Kolff,  301) — Neio  Zealanders  (Cook's 
Last  Voy.  54)— Dyaks  (Broo,  i,  15)— Malagasy  (Wai.  ii,  431)—Hehrews  (Ex. 
xxi,  7 ;  2  Kings  "iv,  1 ;  Joh  xxiv,  9) — Romans  (Lee.  ii,  31) — Celts  (Konig. 
86-7)— Germans  (Gri.  461) -Poma7is  (Hunt.  29  ;  Konig.  87)— -Frajice  (Bern. 
189-193;  Gone.  10-12;  Bern.  161).  §  102.  Esquimaux  (Hear.  161)— 

Greeks  (Gro.  ii,  468) — Bodo,  Dhimdl  and  Kocch  (Hodg.  157  ;  Hodg.  in 
J.  A.  S.  B.  xviii,  741).  §  lH.  Esquimaux  (Cran.  i,  l(j4-5)—Fnegians 

(Wed.  168) — Veddahs  (Tenn.  ii.  440)  — Tasmanians  (Bon.  81) — Mountain 
Snakes  (Ross,  i,  250)— Fish-eaters  (Scho.  1,  207)— Shirry-dikas  (Lew.  & 
Clarke,  306]—Coma7whes  (Scho.  ii,  127).  §  112.  Snakes  (Lew.  &  ClarLe, 

306)— Creeks  (Scho.  v,  211)—Dacotahs  (Scho.  ii,  183-5)— Comanches  (Scho.  i, 
231) — Uanpes  (Wal.  499) — Patagonians  (Falk.  123) — Araucanians  (Thomp.  i. 
405)— Bechuanas  (Licht.  ii,  32d)— East  Africans  (Burt.  C.  A.  ii,  365)— Coast 
Negroes  (J.  E.  S.  1848,  i,  215 ;  Wint.  i,  127)— Ahi/ssinia  (Park,  ii,  236-8)— 
Arabs  (Palq.  53  ;  Burck.  i,  284)— i?/;(7s  (Mai.  i,  57ii)—Khonds  (Macph.  44 1— 
Karens  (Mas.  in  J.  A.  S.  B.  xxxvii,  Pt.  II,  142)— Early  Teutons  (Kemb.  i,  268. 
272 ;  Thor.  i,  447)— English  (Green,  197)— French  (Gue.  ccviii).  §  117. 

Paternal  Government  (Mai.  133).  §  118.  Flato  (Laws,  bks.  vi,  vii;  Rep. 
bk.  \)— Aristotle  (Rep.  bk.  vii,  14-lG)— Plato  (Rep.  iv,  19)— Aristotle  (Rep. 
bk.  vii,  9-10).  §  121.  Feudalism  (Bonne,  i,  269)— Fiji  (WiU.  i,  30)— 
Church-and-King  Mob  (Hux.  103).  §  131.  Thieves  (Daily  Papers :  date 
lost).  §  132.  Shrewsbunj  (Jev.  37).  §  133,  Penny  Post  (Ency.  Brit, 
xix,  565) — Boy  Messengers  Co.  (Daily  Papers,  March,  1891). 


REFERENCES.  289 


TITLES   OF  WOEKS  REFEEEED  TO. 

And. — Anclersson  (C.  J.)  Lake  Nfjami. 

Ang. — Angas  (G.  F.)  Savage  Life  and  Scenes  in  Australia  and  New  Zealand. 

Aiist. — Aristotle's  Politics  and  Economics.     Trans,  by  E.  Walford.     (Bohn'8 

Series).     London,  1871. 
Arn. — Arnold  (W.  T.)  Roman  Provincial  Administration.    London,  1879. 
Aust. — Austin  (John)  The  Province  of  Jurisprudence  determined.     2nd  Ed. 

8vo.     London,  1861. 
Bast. — Bastian  (A.)  Der  Mensch  in  der  Geschichte.    3  vols. 
Bates.— Bates   (H.   W.)   The  Naturalist  on  the  River  Amazon,    2nd  Ed. 

London,  1864. 
Bee. — Beecham  (J.)  Ashanti  and  the  Gold  Coast. 
Bel. — Bellamy  (E.)  Looking  Backward. 
Bel. — Bellamy  in  Contemporary  Revieic. 
Bello. — Belloguet  (R.  Baron  de)  Ethnogenie  Gauioise. 
Bern. — Bernard  (P.)  Uistoire  de  V Autorite  paternelle  en  France.    Montdidier, 

1863. 
Bon. — Bonnem^re  (E.)  Histoire  des  Pai/sans.  2nd  Ed.  2  vols.   Paris,  1874. 
Bonw. — Bonvfick  (J.)  Daily  Life  and  Origin  of  the  Tasmanians.  8vo.  London, 

1870. 
Bi"oo. — Brooke  (C.)  Ten  Years  in  Sardicak. 

Burch. — Burchell  (W.  J.)  Travels  into  the  Interior  of  Southern  Africa. 
Burck. — Burckhardt  (J.  L.)  Notes  on  Bedouins  and  Wahdhys.    London,  1831. 
Burt. — Burton  (Pi.  F.)  Abeokuta  and  the  Cameroon  3Iountains.    2  vols.    1863. 
„  „  The  Lake  Regions  of  Central  Africa.  2  vols.  8vo.  1860. 

,,  ,,  Mission  to  Gelele,  king  of  Dahomey.     London,  1864. 

C.  N.  EL — CasselVs  Natural  History,  ed.  by  P.  M.  Duncan.     6  vols.  roy.  Svo. 

London,  18[77]-1883. 
Camp. — Campbell  in  Journal  of  the  Ethnological  Society,  London. 
Cook. — Journal  of  Captain  Cook's  Last  Voyage,  1776-79.     London,  1781. 
Cop. — Copinger  (W.  A.)  The  Law  of  Copyright.     2nd  Ed. 
Craik. — Craik  (G.  L.)  History  of  Englisli  Commerce.     1844. 
Cran. — Crantz  (D.)  History  of  Greenland.     London,  1820. 
Cunn. — Cunningham  (W.)  The  Growth  of  English  hidusU~y  and  Commerce,  etc. 

Svo.    Cambridge,  1890. 
Dal. — Dallas  in  CnsselVs  Natural  History. 

Dalt. — Dalton  (Col.  E.  J.)  Descriptive  Ethiwlogy  of  Bengal.    Calcutta,  1872. 
Dalt. — Dalton  in  Journal  of  the  Asiatic  Society,  Bengal. 
Ebers. — Ebers  (G.)  Aegypten  und  die  BUcher  Moses.    Leipzig,  1868. 
Ell.— Ellis  (Rev.  W.)  Narrative  of  a  Tour  through  Hawaii.     1827. 

,,  ,,  Polynesian  Researches.     1829. 

Ency.  Brit. — Encyclopcedia  Britannica.     9th  Ed. 
Ersk.— Erskine  (Capt.  J.  E.)  Journal  of  a  Cruize  among  the  Islands  of  the 

Western  Pacific.     8vo.     1853. 
Falk. — Falkner  (T.)  Description  of  Patagonia. 
Fav. — Favre   (Rev.  P.)   in  Journal  of  the  Indian  Archipelago.     Vol.   II. 

Singapore. 
Fitz.— Fitzroy  (Admiral)  Narrative  of  the  Surveying  Voyages  of  tlie  'Adven- 
ture' and  'Beagle,'  etc.     London,  1839-40. 
Fresh.— Freshfield  (D.)  in  Proceedings  of  the  Royal  Geograpldcal  Society. 
Gill.— Gillmore  (P.)  The  Hunter's  Arcadia. 


290  EEFEEENCES. 

Gone— Goncourt  (E.  &  J.  de)  La  Femme  an  XVIIIe  Siicle.    8vo.     1862. 

Green.— Green  (J.  R.)  A  Short  History  of  the  English  People.     1880. 

Gri. — Grimm  (Jacob)  Deutsche  Bechtsalierthiimer.     Gottingen,  1828. 

Grif. — Griffith  (W.)  Journal  of  Travels  in  Assam,  etc.     Calcutta,  1847. 

Gro.—Grote  (G.)  A  History  of  Greece.     10  vols.     4th  Ed. 

Gue. — Guerard  (B.)  Cartulaire  de  Vahhaye  de  St.  Fere  de  Chartres.     2  vols. 

Paris,  1840. 
Harr. — Harris  (W.  C.)  Highlands  of  Ethiopia.    London,  1844. 
Hay. — Haydn's  Dictionary  of  Dates.     12th  Ed.,  by  Vincent.     London,  1S6G. 
Hear. — Hearne  (S.)  Journey  from  Prince  of  Wales's  Fort,  etc.     Dublin,  1796. 
His. — Hislop  (Rev.  S.)  Aboriginal  Tribes  of  the  Central  Provinces.     ISGO. 
Hodg. — Hodgson  (B.  H.)  Kocch,  Bodo  and  Dhimdl  Tribes.     Calcutta. 

„  „  in  Journal  of  the  Asiatic  Society,  Bengal. 

Holtz. — Holtzendorf-Vietmannsdorf  (F.  von)  Handbuch  des  deutschen  Straf- 

rechts.     4  vols.  8vo.     Berlin,  1871. 
Hook. — Hooker  (J.  D.)  Himalayan  Journals.     2  vols.  8vo.     1854. 
Hunt. — Hunter  (W.  A.)  Introduction  to  Boman  Laic.    London,  1880. 
Hux. — Huxley  (T.  H.)  Science  and  Culture,  and  other  Essays.    London,  1881. 
J.  A.  S.  B. — Journal  of  the  Asiatic  Society,  Bengal. 
J.  E.  S.  L. — Journal  of  the  Ethnological  Society,  London. 
Jev. — Jevons  (W.  Stanley)  The  State  in  Belation  to  Labour.     London,  1882. 
Ka— Kant's  (E.)  Theory  of  Ethics.     Trans,  by  T.  K.  Abbott.     London,  1S73. 
Kemb. — Kemble  (J.  M.)  llie  Saxons  in  England.     2  vols.  8vo.     1849. 
Kolb. — Kolben  (P.)  Present  State  of  the  Cape  of  Good  Hope.    Trans,  by 

Medley.     1731. 
Kolff .— Koiff  (D.  H.)  Voyages  of  the  Butch  Brig  the  *  Dourga '  through  the 

Molucca  Archipelago,  etc.     Trans,  by  G.  W.  Earl.     1840. 
Konig. — Konigswarter  (L.  J.)  Histoire  de   V organisation  de   la  Famille  en 

France.    Paris,  1851. 
Land. — Lander  (R.)  Journal  of  an  Expedition  to  the  Course  and  Termination 

of  the  Niger.    London,  1832. 
Lapp. — Lappenberg  (J.  M.)  England  under  the  Saxon  Kings.    Trans,  by 

B.  Thorpe.     2  vols.  8vo.     1845. 
Lav. — Laveleye  (E.  de)  in  The  Contemporary  Review. 

„  ,,  Primitive  Property.    London,  1878. 

Lee— Lecky  (W.  E.  H.)  History  of  European  Morals.      3rd  Ed.    2  vols. 

London,  1877. 
Lee  — Lecky  (W.  E.  H.)  On  Rationalism  in  Europe.    2  vols.  8vo.     18G5. 
Lev. — Levasseur  (C.)   Histoire  des  classes  ouvrieres.    1st  and  2nd  series. 

4  vols.     Paris,  1859-67. 
Lew. — Lewis  (M.)  and  Capt.  Clarke.     Travels  to  the  Source  of  the  Missouri, 

etc.     London,  1814. 
Licht.— Lichtenstein  (H.)  Travels  in  Southern  Africa  in  the  Years  1803-1806. 

Trans,  by  A.  Plumptre.     2  vols.  4to.     1812-15. 
Locke.— Locke  (J.)  Tico  Treatises  of  Government.    5th  Ed.    London,  1728. 
Lub.— Lubbock  (Sir  J.)  Pre-Historic  Times.     2nd  Ed.     8vo.     London,  1869. 
Macph.— Macpherson  (Lieut.)  Report  upon  the  Khonds  of  Ganjamand  Cuttack. 

Calcutta,  1842. 
Mai.— Maine  (Sir  H.  S.)  Ancient  Lata.     3rd  Ed.    London,  1866. 
Mai.— Malcolm  (Sir  J.)  Memoir  of  Central  Asia.     London,  1823. 
Mar. — Marsden  (W.)  History  of  Sumatra. 

Marsh.— Marshall  (Lieut. -Col.  W.  E.)  A  Phrenologist  amongst  the  Todas.  Lon- 
don, 1873. 
Mart. — Martineau  (H.)  History  of  England  during  the  Thirty  Years'  Peace 

1849-50. 
Mas. — Mason  in  Journal  of  the  Asiatic  Society,  Bengal. 


REFERENCES.  291 

Mill.— ^lill  (John  Stuart)  Utilitarianism.    2nd  Ed.    8vo.    London,  1864. 
Mov. — Movers  (D.  F.  C.)  Die  Plwnizicr.     2  vols,  in  4,  8vo.     Bonn,  1841-66. 
Osw. — Oswald  (F.)  Zoological  Sketches. 
Pala. — Palacio.    San  Salvador  and  Honduras  in  1576  (in  Squier,  Collection 

No.  1). 
Palg. — Palgrave   (W.   G.)  Journey    through  Central   and    Eastern  Arabia. 

London,  1865. 
Park. — Parkyns  (M.)  Life  in  Ahrjssinia,  etc.     2  vols.  8vo.     18.53. 
Pat. — Paterson  (J.)  The  Liberty  of  the  Press,  etc.     London,  1880. 
Pict.  Hist— Pictorial  History  of  England.     6  vols.     1837-41. 
Pla.  Jow. — Plato's  Republic.    Trans,  by  B.  Jowett.    2nd  Ed.    8vo.     Oxford, 

1881. 
Proy. — Proyart  (Abb6)  History  of  Loango.     (In  Pinkerton's  Collection,  XVI.) 
Eee. — Reeves  (J.)  History  of  the  English  Law.    Ed.  Finlason.    3  vols.  8vo. 

1869. 
Eob. — Robertson  in  Encyclopcedia  Britannica.     9tli  Ed. 
Eog. — Rogers   (J.  E.  T.)   History  of  Agriculture  and  Prices  in  England. 

Vol.  I.     1866. 
Kom. — Romanes  (G.  J.)  Animal  Littlligence.    8vo.    London,  1882. 
Ross. — Ross  (Alex.)  Fur  Hunters  of  Far  IVcst.    London,  1855. 
St.  John. — St.  John  (S.)  Life  in  the  Forests  of  the  Far  East. 
Scho. — Schoolcraft  (H.  R.)  hiformation  respecting  the  Indian  Tribes  of  the 

United  States.     5  vols.  4to.     London,  1853-6. 
Shab. — Shabeeny  (El  Hage  abd  Salam)  Account  of  Timbitctoo,  etc.  pub.  by 

J.  G.  Jackson.     1820. 
Squi. — Squier  (E.  G.)  Nicaragua.    New  York,  1852. 

Steph. — Stephen  (H.  J.)  New  Commentaries  on  the  La%cs  of  England.  6th  Ed. 
Steph. — Stephen  (J.  F.)  A  History  of  the  Criminal  Law  of  England.    3  vols. 

8vo.     1883. 
Stew. — Stewart  in  Journal  of  the  Asiatic  Society,  Bengal. 
Tac— Taciti  (C.  C.)  Germania.     Trans,  by  Aikin.     Warrington,  1777. 
Tenn. — Tennant  (Sir  J.  E.)  Ceylon:  An  Account  of  the  Island,  etc.    3rd  Ed. 

London, 1859. 
Thomp. — Thompson  (G.  A  )  Alcedo's  Geographical  and  Historical  Dictionary 

of  America,  etc.     London,  1812. 
Thorns. — Thomson  (Dr.  A.  S.)  The  Story  of  New  Zealand,  etc.    2  vols.  Svo. 

1859. 
Thor. — Thorpe  (B.)  Ancient  Laws  and  Institutions. 
Tocque. — Tocqueville  (A.  de)  TJie  State  of  Society  in  France  before  the  Eevo- 

lution.     Trans,  by  Reeve.     8vo.     London,  1856. 
U.  S.  Ex.  E-x.— Narrative  of  the   United  States'  Exploring  Expedition,  by 

Commander  C.  Wilkes.    5  vols.    Philad.,  1845. 
Wai. — Waitz  (T.)  Anthropologic. 
Wal. — Wallace  (A.  E.)  Travels  on   the  Amazon  and  Eio  Negro,  etc.    8vo. 

London,  1858. 
Wed.— Weddell  (James)  Voyage  totcards  the  South  Pole.     1825. 
Wil.— Williams  (S.  W.)  The  Middle  Kingdom..    2  vols.     New  York. 
Will.— WilUams  (Rev.  T.)  and  J.  Calvert.    Fiji  and  the  Fijians.    2  vols.  Svo. 

1858. 
Wint.— Winterbottom  (T.)  Account  of  the  native  Africans  in  the  neighbourhood 

of  Sierra  Leone.    London,  1803. 
Xim. — Ximenez  (F.)  Las  Historias  del  Origen  de  los  Indios  de  Guatemala 

[1721].    Publ.  por  C.  Sherzer.     Viena,  1857. 
Zur. — Zurita  (Al.  de)  Rapport  stir  les  differentes  classes  de  chefs  de  la  NouvelU- 

Espagne.    Trad,  par  H.  Ternaux-Compans.    Paris,  1S40. 


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